Friday, January 13, 2023

And One More...

I am fortunate to disagree with Rick on all sorts of things, to have a formation and moral anthropology that differs from his, and to consider him one of my best friends in the legal academy. I say this by way of saying that although we share some common views on the things we've discussed in the last couple of posts, no doubt we have some bottom-line disagreements on other matters--probably including Dobbs itself. But what he writes below strikes me as pretty reasonable and doesn't depend on our respective views on other matters. I want to add a couple of thoughts:

1: Prof. Chemerinsky teaches constitutional law. I get that, and thus why his examples and thinking might center around that subject. People who are heavily engaged on contemporary political issues--which is not every American, not every law student or faculty member, and not necessarily the finest or most thoughtful people in either category--are also likely to focus on constitutional law, perhaps mistakenly and perhaps faute de mieux, for lack of a position in a more appropriate discipline, in thinking about some of the cultural divides Chemerinsky discusses. But of course it goes beyond that. Long before Dobbs, or the current Court, it was a common observation that the legal academy is often disproportionately con law-centric or -obsessed, and Supreme Court-centric at that. 

One might ask: Would our understanding of, or approach to, "deep divisions in our society" look precisely the same if we were viewing it through the vast majority of our curriculum, which thinks about things like tort, contracts, property, tax, securities, and so on? I do not mean to minimize the very real feelings Chemerinsky is discussing or, for that matter, to suggest they are irrelevant to those other subjects. But are those feelings as sharp, in the classroom or in our dealings with each other as students and faculty members, when the subject under discussion is contract law? Where there are disagreements about the doctrine on easements, do they fall as simply and as often along trite political lines? Where those disagreements occur, are they handled more civilly? Yes, Chemerinsky teaches con law. But he's also a dean with a whole curriculum at his survey. Has he considered that there are other models, and other places in the same law schools, in which the state of civil discourse, the availability of disagreement without polarization or mutual demonization, and the ways of addressing disagreement are better--kinder, more scholarly, more thoughtful, less vitriolic, more tolerant and welcoming? Why model the whole picture of what's going right or wrong in law or law school, and of what we should use as a tether or orientation point for thinking about students' mindset and how to develop it, around constitutional law and the Court?

I'm not just asking this of Chemerinsky. It is a common observation outside the legal academy, within our general culture, that some of our discursive spaces tend to focus most relentlessly on the things that are most divisive and, in doing so, to neglect vast spaces of normal life, vast numbers of normal people with other concerns, and to exacerbate division. Perhaps it is the case that our endless focus on a few public law subjects, and tendency to define them as the main ground of discussion and debate, has the same effect within law schools. Maybe we would be slightly more encouraged, and find better models for addressing discourse and disagreement, if we looked elsewhere within the curriculum. I might add that, however it might appear to some faculty (faculty like me, who teach public law courses), many or most students are primarily interested in those non-polarized topics, both for intellectual reasons, because those subjects are more interesting and serious, and because they involve the kind of work they're going to do for a long time to come. 

2: I do think Rick is right that Chemerinsky's column "others" conservative law students. (Twice, actually: Once up front, and then again when it implicitly assumes that the folks focusing on "change" and "struggle" outside the Court will be progressives. As I survey state and local politics, it doesn't look that way to me.) It also flattens them, lumping them en masse into an unhelpfully broad category. Interestingly, it does the exact same thing to what he calls "progressive and even moderate" students. This is common enough, of course. But it's also terribly banal, and unfair to all the students involved. Maybe one way to improve civil discourse along the political divide is avoid thinking about it in such banal, overbroad categorical terms. 

Incidentally, and with apologies for the use of flattening terms, I teach at a law school in a conservative part of the country, and although its students come from all over and even those from right here do not tend to hold views that parallel those of the residents of their state, I'm sure many of those with even somewhat conservative views would say that those views are almost nowhere and never represented or discussed in a serious way by their own law school, let alone taught as interesting subjects. I taught a seminar on conservative legal thought a couple of years ago. It was of course open to all and I taught it, as I teach everything, not because of or about my politics (which are not especially conservative), but because I thought the subject was interesting; because I thought there were students--some of them, but not all, conservative--wanting and waiting to learn about some of this material and not getting it; and because I thought it deserved a thoughtful, critical academic treatment in which the students and I could explore these ideas together. My sense is that the non-conservative students thought the subject was worthwhile and taught fairly--and the conservative students felt "seen," as the hackneyed phrase would have it, and were grateful for the opportunity. There are certainly some clearly "conservative" law schools out there, and some clearly "progressive" ones. But I think there are also plenty of law schools where the views and composition of the faculty--and the courses offered by them--have little or nothing to do with the politics, views, concerns, or interests of the students. This is one problem with a hiring model that focuses on national credentials involving a very few institutions and that over-relies on an ideologically, educationally, and socio-economically narrow cohort: it creates circumstances, for many schools across the country, that can easily lead to a fundamental alienation between faculty and students. And it's an ironic one, given all the fashionable and earnest talk these days about being "responsive" or "listening" to students.    

3: Rick writes, "Institutions of higher education -- nonstate ones, anyway -- are entitled, in my view, to organize themselves around distinctive -- and even partisan -- missions, commitments, methodologies, and aims." I tend to agree with him about that, albeit uneasily, and have written about this. But I don't think the AALS is such an institution. I acknowledge that we've had interesting discussions and disagreements on this page in the past about whether the AALS is a learned society, like other academic learned societies, or more like a trade association, or an awkward hybrid of both. Whatever it is, it's not an "institution of higher education" in the way that a specific university is. Its functions and obligations are different. And it seems to me they sometimes include insisting on better and more interestingly diverse panels. (This year's program offerings included an enormous number of panels simply organized around "new voices" or "emerging scholars" or some other standard phrase meaning "not just the same folks again." I cannot imagine the sheer number of panels organized in this fashion was spontaneous; I assume it took place with the urging or at the direction of the AALS. I applaud the move in many respects. How many damn times must we hear from [redacted] at the AALS? My only complaint is that simply organizing a panel around "new voices," rather than coming up with a worthy topic and then seeking out and inviting new voices to discuss it, strikes me as quite lacking in imagination--as mere compliance with a dictate rather than something deeper.) When it comes to the interaction between the AALS, its sections, and its panels, it seems to me the AALS is routinely in the position of leaning both too hard and not hard enough on its constituent parts. It should do some leaning, and send some panels back to the drawing board--but with the "learned society" aspect of its identity firmly in mind.   

Posted by Paul Horwitz on January 13, 2023 at 01:21 PM in Paul Horwitz | Permalink | Comments (0)

JOTWELL: Tidmarsh on Hershkoff & Norris and democracy and jurisdiction

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing Helen Hershkoff & Luke Norris, The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, Mich. L. Rev. (forthcoming 2023), exploring how corporate power influences jurisdictional rules in ways that enhance corporate power and limit democracy.

Posted by Howard Wasserman on January 13, 2023 at 12:52 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

An(other) post-AALS post on Dobbs etc.

Like Paul, I did not attend the AALS Annual Meeting this year. In the past, for 15 years or so, I was a regular attendee and participant but, recently, in part because of kids' school-vacation schedules and in part for the obvious reasons, I've been going to the Wasatch Range instead. And, like Paul, reading the program and panel descriptions, I was struck -- I wish I could say I was surprised -- by the strong evidence of a lack of interest, on the part of AALS and Section leadership, in representing the range of informed and intelligent views on panels having to do with, e.g., the Dobbs decision (in contrast with the Federalist Society's event). I heard, from someone who was present, that, when asked by a floor questioner why all of the panelists agreed re: Dobbs's badness, one of the panelists said "maybe because we are right." Maybe.

I did, though, read Dean Erwin Chemerinsky's "President's Message" ("Law Schools, Civil Discourse, and the Political Divide"), in the AALS's Fall 2022 newsletter, which turned up the other day in my mailbox.  After noting that "this is a particularly fraught and troubling time in our nation’s history"; that "[t]he country is more deeply politically divided than at any time since Reconstruction"; that "[f]aith in the institutions of government, including the Supreme Court, is at an all-time low"; and that "the vitriol in public rhetoric continues to grow", he writes:

The Supreme Court’s decision to overrule Roe v. Wade and likely to end affirmative action in higher education has led to many of our students being more dejected about the Court and constitutional law than I have ever seen in over four decades as a law professor. Of course, our conservative students are jubilant, but our progressive and even moderate students see a Court that has situated itself solidly on the far-right side of the political divide and is likely to remain that way for years or even decades to come.

It's probably not worth litigating here whether Dean Chemerinsky's sense of where the "far-right side of the political divide" starts is correct and whether he has made the mistake of identifying the views of the typical reader of the AALS newsletter with the American political mainstream. Certainly, it is not the case that, say, doubts about the constitutional bona fides of the anomalously permissive Roe/Casey regime or about race-based college admissions are confined to the "far-right side of the political divide." In any event, it is not surprising that those students who do regret the Court's current composition and output would feel not only safe in sharing, but invited and welcome to share, those regrets with Dean Chemerinsky. Whether he is hearing from a representative sample -- indeed, whether all that many of our students are as focused on the Court, on constitutional doctrine, and on public law generally as constitutional-law teachers tend to assume -- is hard to know.

What struck, and troubled, me, though -- and again, the quote above is not taken from one of Dean Chemerinsky's regular op-eds, but from the American Association of Law Schools' president's message --  was the unmistakable "othering" of "our conservative students" in his account. Any reader -- including any of "our conservative students" -- understands that the "conservative students" mentioned, unlike the "progressive and even moderate" ones, are, really, outside the "we." They exist, to be sure, but they are, and they represent, problems to be overcome, and obstacles to be navigated. They are not the ones to whom (quoting the president's message) "we must provide . . . a basis for hope" -- after all, the president's "hope" is that they will no longer have reason to be "jubilant" -- and they are not (not really) the ones "we" need to make sure "feel included and safe and that they belong." Some of "our" students are "dejected", but idealistic and correct; others are "jubilant" but wrong -- indeed, morally obtuse. If this "othering" is happening in the president's message, I suppose it is probably happening, and being experienced by many students, in a lot of law-school classrooms.

Institutions of higher education -- nonstate ones, anyway -- are entitled, in my view, to organize themselves around distinctive -- and even partisan -- missions, commitments, methodologies, and aims. At the same time, it should not be surprising if attitudes like the ones communicated in Dean Chemerinsky's message prompt pushback from officials and consumers, whose reasons for dejection, and whose hopes, might be different from his.

Posted by Rick Garnett on January 13, 2023 at 12:20 PM in Life of Law Schools, Rick Garnett | Permalink | Comments (0)

The Trustworthiness of American Lawyers (Part III)

The following post comes from Michael Ariens (St. Mary's), the third in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).     

“Brains were the cheapest meat in the market.” So allegedly said Jay Gould, late nineteenth century Wall Street speculator, railroad owner, financier and, to some, robber baron. One of Gould’s many “brains” was David Dudley Field, one of the most prominent American lawyers of the nineteenth century. Field, his son Dudley, his partner Thomas Shearman, and dozens of other lawyers were handsomely paid by Gould and “Diamond” Jim Fisk for their work in the “Erie wars,” a series of legal battles from 1868-1872. These cases overlapped the indictment of William “Boss” Tweed, leader of Tammany Hall and functionally ruler of New York City government. Field also represented Tweed, after unsuccessfully seeking an appointment to prosecute him. For Field, his actions in representing Gould, Fisk, and Tweed were all within the bounds of conscience. His lawyer-critics claimed his behavior should subject him to disbarment, or failing that, to some type of censure by his fellow lawyers. These critics argued Field had represented his clients beyond the limits of permissible adversarial zeal.

Continue reading "The Trustworthiness of American Lawyers (Part III)"

Posted by Howard Wasserman on January 13, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (0)

Wednesday, January 11, 2023

Coan on the Court

Andrew Coan has this excellent post at Balkinization examining claims that the Supreme Court is changing "too much, too quickly." It is of a piece with his recent article, also excellent, titled "What's the Matter With Dobbs?" Neither the post nor the article require the reader to believe that Dobbs is anything but wrong in various senses of the word. (In his article he notes that he believes the opinion was "wrong, gratuitously cruel, and poorly reasoned in many respects." But he rightly notes that he considers that conclusion "not germane" to the argument he is making in the piece, and rightly notes as well that his reasons for that view are banal--as would be similar arguments for Dobb's rightness. I also tend to think Dobbs is wrong, and my views on the subject are also banal.) But both the post and the article look seriously and critically at the language we use to criticize the Supreme Court and its opinions, note the distinction between criticisms based on moral disagreement and those based on lawlessness or illegitimacy, and remind us of the value of "specifying what, precisely, is wrong with the changes of the past Supreme Court term and those looming on the horizon" and some of the dangers, intellectual and political, of mislabeling or misidentifying one's criticisms. I suppose I would add, specifying precisely, accurately, and candidly. One ought not need to add this--no one thinks Professor Jamal Greene is a fan of Dred Scott or Plessy, but no one I am aware of condemns him for arguing that their anticanonical status does not mean, or even suggest, that they are of "uniquely low quality" in terms of conventional constitutional analysis--but I'm afraid one does need to add it. 

I was not at AALS this year--this year's program listings, on the whole, did not strike me as especially good or imaginative--so I did not see the Constitutional Law Section panel on Dobbs. Just as a headline is not an article, so a description of a panel discussion is not the panel discussion itself. I still feel comfortable suggesting that, if it was beyond imagining that the panel might have included someone defending Dobbs or offering some other, more genuinely heterodox position, it certainly had ample room for a thoughtful, independent interlocutor like Coan.   

Posted by Paul Horwitz on January 11, 2023 at 12:17 PM in Paul Horwitz | Permalink | Comments (0)

The Trustworthiness of American Lawyers (Part II)

The following post comes from Michael Ariens (St. Mary's), the second in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).     

Perhaps the most eventful experience in David Hoffman’s life occurred when he was nearly lynched for actions related to his opposition to the War of 1812. Hoffman and other Federalists battled supporters of the war, resulting first in the deaths of several supporters, and, after the arrest and jailing of Hoffman’s compatriots, the murder of one of those jailed. Hoffman would have been hanged “but for the providential interference of a stranger, who satisfied the murderers that they had got hold of the wrong man.”

Continue reading "The Trustworthiness of American Lawyers (Part II)"

Posted by Howard Wasserman on January 11, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (5)

Tuesday, January 10, 2023

More on oral assessments

Following on this exchange on oral assessments: My Civil Rights class this semester (first meeting this morning) will not include a large end-of-semester writing project, only oral arguments (plus three short in-semester papers and class participation). The three papers are worth more than the arguments, as school rules require. But students can focus all attention to the arguments as the capstone to the class.

I am curious to see if it makes a difference in the quality of arguments or in my ability to evaluate overall performance.

Posted by Howard Wasserman on January 10, 2023 at 08:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, January 09, 2023

Section Four and the Debt Ceiling

Now that Republicans have organized the House, questions are being asked about whether the debt ceiling will be raised this Fall. If that does not occur in time, Section Four of the Fourteenth Amendment will be suggested as a possible remedy. This point was discussed at some length a decade ago during that debt standoff, but with no conclusion. I thought I would give a brief primer.

The key takeaway is that Section Four does not give the President or the Treasury Department the power to raise the debt ceiling. At most, Section Four gives the Treasury discretion to prioritize debt service over other federal spending. But only to the point that money is available. Would bondholders have a Section Four cause of action if the debt ceiling is not raised? Probably, but only if a payment is missed. This did not happen in the prior debt ceiling confrontations. The next one could be more severe though. 

Posted by Gerard Magliocca on January 9, 2023 at 10:19 AM | Permalink | Comments (0)

The Trustworthiness of American Lawyers (Part I)

The following post comes from Michael Ariens (St. Mary's), the first in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).     

In my book The Lawyer’s Conscience: A History of American Lawyer Ethics (2023), I assess the ways in which lawyers have justified the power they possess and the manner in which they exert such power. The most important justification given by lawyers is the claim that lawyers are in the marketplace but not of the marketplace. Though lawyers were in the marketplace offering their legal expertise for fees from paying clients, they were not of the marketplace because they exercised power subject to some ethical constraints. The Lawyer’s Conscience traces the history of American lawyer ethics from 1760 to the early twenty-first century. My goal in this and following posts is to provide a brief sketch of this history.

Continue reading "The Trustworthiness of American Lawyers (Part I)"

Posted by Howard Wasserman on January 9, 2023 at 09:31 AM in Books, Judicial Process, Law and Politics | Permalink | Comments (0)

The Lawyer's Conscience

Beginning today and continuing to next week, we will run a series of posts from Michael Ariens (St. Mary's) on is new book, The Lawyer's Conscience: A History of American Lawyer Ethics (University of Kansas Press).

Posted by Howard Wasserman on January 9, 2023 at 09:01 AM in Books | Permalink | Comments (0)

Sunday, January 08, 2023

The Origin of the "Zone of Twilight"

Until I began researching my book on Justice Jackson's Youngstown concurrence, I did not know that he probably got the phrase "zone of twilight" from an earlier Attorney General opinion.

In 1937,  Assistant Solicitor General Golden W. Bell wrote a memo on "The President in the Field of Foreign Relations." The memo was a response to the Neutrality Acts that were moving through Congress at that time. After summarizing the inconsistent history and practice, Bell concluded that public opinion was the most important factor in assessing difficult line-drawing questions on executive power. He then said:

"In the field of foreign relations, the Chief Executive moves in a zone of twilight where he may proceed with assurance of his powers under the Constitution only when the people follow and approve."

This line is not identical to Jackson's, of course, but it does capture some of the spirit of Category 2 of Youngstown. Moreover, Bell's opinion appears to be the source of the some the citations in Jackson's opinion (for example, the competing views of Hamilton and Madison and TR and Taft on executive power). Jackson was an Assistant AG in 1937, which means that he could have seen the opinion then.

I don't know anything about Bell other than that he served from 1935 to 1939. But I hope to learn more about him.

Posted by Gerard Magliocca on January 8, 2023 at 09:00 AM | Permalink | Comments (0)

Saturday, January 07, 2023

FTC announces a proposed rule to ban all noncompetes nation-wide

This week the FTC released a Notice of Proposed Rulemaking to prohibit employers from imposing noncompete clauses on workers: "True to their name, noncompetes block people from working for a competing employer, or starting a competing business, after their employment ends. Evidence shows that noncompete clauses bind about one in five American workers, approximately 30 million people. By preventing workers across the labor force from pursuing better opportunities that offer higher pay or better working conditions, and by preventing employers from hiring qualified workers bound by these contracts, noncompetes hurt workers and harm competition. Noncompete clauses significantly reduce workers’ wages. When employers use noncompete
clauses to restrict workers from moving freely, they have the power to suppress wages and avoid having to compete to attract workers. Based on existing evidence, noncompete clauses also
reduce the wages of workers who aren’t subject to noncompetes by preventing jobs from opening in their industry. According to FTC estimates, the proposed rule could increase workers’
earnings across industries and job levels by $250 billion to $296 billion per year. Researchers also find that banning noncompetes nationwide would close racial and gender wage gaps by 3.6-
9.1 percent. Noncompete clauses stifle new businesses and new ideas. Existing evidence shows that noncompete clauses hinder innovation in several ways—from preventing would-be entrepreneurs
from forming new businesses, to inhibiting workers from bringing innovative ideas to new companies. In markets with fewer new entrants and greater concentration, consumers face higher
prices—as seen in the health care sector. Noncompete clauses can exploit workers and hinder economic liberty. Workers often have less bargaining power than their employer. In many cases, noncompete clauses are take-it-or-leave-it contracts that exploit workers’ lack of bargaining power and coerce workers into staying in jobs they would rather leave. To varying degrees, each state restricts employers’ ability to enforce noncompete clauses due to concerns that they harm workers and threaten a person’s ability to practice their trade. Employers have other ways to protect trade secrets and other valuable investments that are significantly less harmful to workers and consumers. Employers often justify using noncompetes with their workers to protect confidential information and to get the most out of their investments in training and capital. But the record to date shows that in California, North Dakota and Oklahoma—three states in which employers can’t enforce noncompete clauses— industries that depend on trade secrets and other key investments have still flourished. This shows that employers have other ways of protecting these investments."

music to my ears! Exciting also that the definition of noncompetes in the proposed rule includes "de facto" noncompetes:

"The term non-compete clause includes a contractual term that is a de facto non-compete clause because it has the effect of prohibiting the worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer. For example, the following types of contractual terms, among others, may be de facto non-compete clauses:

i. A non-disclosure agreement between an employer and a worker that is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer.

ii. A contractual term between an employer and a worker that requires the worker to pay the employer or a third-party entity for training costs if the worker’s employment terminates within a specified time period, where the required payment is not reasonably related to the costs the employer incurred for training the worker."

The notice and comment period will being soon. Do let me know if you'd like to join and submit a comment.

https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking

Posted by Orly Lobel on January 7, 2023 at 09:51 PM | Permalink | Comments (2)

Call for Papers - The British and Irish Law Education Technology Association 38th Annual Conference - Amsterdam in April (submission of short abstract due Jan 10!)

Annual conference 2023

Thursday 13th April – Friday 14th April 2023

Vrije Universiteit Amsterdam (Amsterdam Law and Technology Institute) and Online

Visit the conference website here.

Martin Furtschegger, CC BY 3.0 https://creativecommons.org/licenses/by/3.0, via Wikimedia Commons 

Cyberlaw: Finally getting its Act(s) together?

BILETA Conference 2023 warmly invites individuals to attend and participate in its critical and topical discussions on the future of law, technology, intellectual property, and legal education. Papers are welcome from academics, researchers, practitioners, postgraduate students, those in business or practice, activists and anyone else with an interest in technology in the law (broadly construed) and legal education. Participants are welcome from any country to enjoy the scholarly, social and cultural experience of BILETA. In 2023, BILETA will return to Amsterdam.

Although the conference is fully hybrid, we hope to meet you in person here. The BILETA AGM will take place on Wednesday 12th April.

Call for papers and more details available here. Deadline: 10th January 2023.

Posted by Orly Lobel on January 7, 2023 at 09:41 PM | Permalink | Comments (0)

Section Three Hibernation

A Speaker was finally elected this morning. When the Speaker swore in the members-elect, no challenges were made as to their qualifications. After 1AM is not an ideal time to drag out the proceedings, I suppose.

In any event, the result is that we will not see any further formal action regarding Section Three of the Fourteenth Amendment until the Fall. At some point, there will be a filing deadline for a state presidential primary in which a judicial challenge can be made to a candidate's eligibility or where some election official has the authority to make the initial determination. I don't know which state will meet those criteria first or when.

Thus, my plan is to begin a Section Three blogging moratorium today. I'll concentrate instead on the usual stuff (what the Supreme Court is up to) and on the book that I'm now writing on Justice Jackson's concurrence in Youngstown. Indeed, I'll have another post up on that later today or tomorrow.

 

Posted by Gerard Magliocca on January 7, 2023 at 08:01 AM | Permalink | Comments (0)

Friday, January 06, 2023

More "Useless" Writing, Please!

This piece by Maksymilian Del Mar, beautifully titled "The Most Useless Book in the History of International Law"--who would not want to get a review with a headline like that!?!--is lovely. It's a review of Gerry Simpson's book The Sentimental Life of International Law: Literature, Language, and Longing in World Politics. I give due credit to the book that inspired it, but in the meantime the review is certainly the most interesting and useful piece of legal scholarly writing I have read in a year or two. It is, somewhat rhapsodically, a tribute to the kind of writing about law we ought to expect, and expect from ourselves, not just in international law but in any area: writing that "draws on and hunts down the awkward spaces, the misshapen, the perverse, the absurd, the accidental, the incongruous, the irrelevant, the irreverent, the 'obscure,' the 'muddy'"; that is "'playful[ ], rebellious[ ], [and] scurrilous[ ]," "speculating, hesitating, postulating, hypothesizing, punning, fantasizing, gossiping, juxtaposing, quipping, raconteuring, [ ]delighting in indirection or even misdirection"; writing that is ironic and comic; writing touched by the spirit of Diogenes; writing that skips "solemnity and high-mindedness." 

Del Mar ends up somewhere different than I might, as no doubt does Simpson. But, if for different reasons, I can endorse his conclusion: "Literature, it turns out once again, is of crucial ethical and political value: it enables us to combine self-critique and hope, while enjoying ourselves. What could be more important—dare I say, more useful—than that?" I'm not sure the writing described is needed now more than ever; it's always needed--there is never enough irony in American letters, and barely any of it in the academy--and no era doesn't count as a "now more than ever" era to those who are experiencing it. But I can say with confidence that many legal academic writers feel, or profess to feel, that their writing ought to be "useful"--and that I've seen no evidence whatsoever that "solemnity and high-mindedness" actually are useful qualities in any tangible sense. 

Posted by Paul Horwitz on January 6, 2023 at 10:36 PM in Paul Horwitz | Permalink | Comments (0)

On the Enduring Importance of Reassuring Myths for the Professional-Managerial Class

The Times today has a story pursuing a theme it began pushing only a few weeks ago: that business schools are now deeply, busily, thoughtfully engaged in reexamining their core values and those of corporate culture. Today's version is particularly enjoyable, coming as it does in the form of a review of a new, $600 million building on the campus of Columbia University, named for Henry Kravis and "separated from an eight-story structure named for the entertainment mogul David Geffen by a circle of grass, trees and benches embedded in a plaza." Written by an architecture critic for the paper, it explains, if I understand it correctly, that the trick to "do[ing] good as [you] make money," or I guess at least feeling as if you're doing good while you make money, involves how you place your stairways. Who knew?

Posted by Paul Horwitz on January 6, 2023 at 06:09 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, January 05, 2023

Some Generalizable Points About Institutional Crisis

In his op-ed today about why the House Speakership affair "reflects larger structural forces that are changing American democracy," Rick Pildes lists some factors that he suggests serve as "forces of fragmentation [that] will continue to bedevil the leaders of both political parties, as they do parties throughout democracies today." The headline--or at least the current one I'm seeing, since the Times editorial section unfortunately tends to A/B many of its headlines these days--chooses to focus specifically on "the fringiest fringe of the G.O.P." That choice surely is meant to appeal to the preferences and prejudices of its readers, but it misses the very points Pildes is making. (A mere three paragraphs in, Pildes observes that the same factors at work in the speakership kerfuffle have also led to the rise of Alexandria Ocasio-Cortez.)

I would take his point a step further. The features he lists contribute to problems for a great many institutions, public and private, whose welfare we should be concerned about. Consider those factors:

  1. "Revolutions in communications and technology...[that] have enabled individual members of [an institution] to function, even thrive, as free agents."
  2. A resultant "flatten[ing] [of] institutional authority."
  3. The greater ease that technology provides for "individuals and groups" to "mobilize and sustain opposition to [institutional] action."
  4. A resultant increased lack of ability for institutions to assert authority, which allows for "intense factional conflicts" to rage within those institutions without any ability to curb them effectively.
  5. An "explosion of small-donor donations"--to which one could stretch a little and add things like GoFundMe, Internet "side hustles," and so on--which allows individual members of institutions to raise money without having to depend on institutional sources of funding.

I am not criticizing these things as such, nor am I ignoring the dangers of ossification or the problems with establishments. But I would note that all of them have been lauded by all sorts of people, of all sorts of political persuasions, on all manner of occasions. They are certainly sexier and more au courant than talking about "institutions" or "authority." But, as the op-ed suggests, when it really counts to have those institutions functioning properly and authoritatively and with some kind of institutional loyalty or shared sense of institutional mission on the part of their members, it turns out that all these factors have corroded those institutions' ability to do any of these things.

As I noted the other day, most of these factors have been instrumental in the corrosion of the legacy press and in its replacement by dubious alternatives to those mainstream institutions. And as I suggested in my post on the legacy press, these factors are at work in the academy as well--with, I would argue, similarly corrosive effects. And the list could easily go on. A decade ago I wrote about the importance of institutions in the First Amendment and the activities it protects, which are the stuff of social and political life. A decade later the general sentiment for those who care about such things is that these institutions are in crisis. This week's events are just another data point. 

One source of that crisis is a sense of indifference to institutions among many, one that can be highly dangerous even if it is also sometimes earned, and a focus instead on the individual. Another is a lack of authority, and a lack of willingness on the part of institutions to wield what authority they still have. The factors Pildes points to have something to do with both these things. So does the all-too-frequent tendency to treat all of these these as positive developments, or to laud them while cherry-picking and dubiously defining some particular evil, such as "misinformation" or "disinformation," without acknowledging that those evils are simply the fruit of a lack of institutional loyalty, commitment, and authority. (What spectacle could be more enlightening on this point than universities speechifying about a decay in social attachment to truth while simultaneously putting out press releases about how some faculty member has made it onto a list of "most influential people on Twitter." Even now someone is penning an article for the Journal of Legal Education talking about how to build your own brand as a professor, or rhapsodizing about the importance of meeting some younger generation "where it lives" while studiously avoiding critical evaluation of any of the values or structures it discusses.)

I do not think any of the things listed above are bad. I like most of them at least some of the time. But I do think all of them are far from unqualified goods, that things like authority and loyalty are too often wrongly treated as suspect or boring, and that, just as parties and government bodies are not the only institutions we need for a functioning civil society, so the institutional crisis Pildes discusses, and the factors he points to, are hardly limited to the GOP, the House, political parties, or official organs of the state.     

Posted by Paul Horwitz on January 5, 2023 at 03:45 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, January 04, 2023

Lest We Forget

Of course it is worth focusing on the trash-fire in the House, but I hadn't realized until this week that the Senate has also broken with tradition in officially electing Senator Patty Murray as president pro tempore, rather than the senior member of the Democratic caucus, Senator Dianne Feinstein. The news did receive coverage when the caucus selected her after nomination by Sen. Schumer in early December. But it certainly did not receive sustained coverage or deep-dive reporting. Stories like today's in the Times are not atypical, describing Feinstein as having "turned the position down" (the Times) or having "declined to seek" the position (the Post). Today's story in the LA Times elides the question by simply not discussing it at all. The story may have been covered differently in the more openly partisan press, which I mostly don't read, and the occasional story

Of course this is a dignity-saving lie on the part of the caucus and half-truth on the part of the press, which, despite earlier, better, and braver coverage, has been less willing in the latest round of stories to say the obvious: that Feinstein is not able to serve in the job, certainly lacks her colleagues' confidence that she can, and may not be competent to serve in her office at all. (The story may have been covered differently in the more openly partisan press, which I mostly don't read, and the occasional story elsewhere is more forthright.) But it seems worth remembering to me, as we continue to slide into gerontocracy. At least Sen. Murray is only 72--unlike Patrick Leahy, who just passed along that office (and retired from the Senate) at the age of 82, or Feinstein, who is 89, or the President, who is 80, occupies a less ceremonial and more demanding job than at of president pro tem, and, like the rest of us, is not getting any younger.  

Posted by Paul Horwitz on January 4, 2023 at 08:54 PM in Paul Horwitz | Permalink | Comments (0)

Muller on US News and Law-Professorial Salaries--Which Surely Ought to Be Lower

Derek Muller continues to provide excellent coverage and commentary on the ongoing US News rankings story. Yesterday he had this post, which asks, as the title of the post puts it, "By knocking off expenditure metrics and devaluing peer reputation scores in the USNWR formula, did law schools just kill the faculty's golden goose?" His argument, in brief:

[I]t may well be that law schools have permanently lost one of their most significant bargaining chips with central universities in trying to secure more funding for the law school....Law schools could [previously] make the case to central administration that high spending on resources, including on law professor salaries, was essential to keeping one’s place in the rankings. No longer. It’s worth considering what financial incentive this may have on university budgets in the years ahead, and the allocation of resources.....And indirectly, the 40% of the formula for reputation surveys, including 25% for peer surveys and 15% for lawyer/judge, was a tremendous part of the formula, too. Schools could point to this factor to say, “We need a great faculty with a public and national reputation, let us hire more people or pay more to retain them.”....Now, the expenditure data is gone, completely. And peer surveys will be diminished to some degree, a degree only known in March....Some increase in the measurement of outputs, including bar passage data and employment outcomes, will replace it. For law faculty specifically, and for law schools generally, this is a fairly dramatic turn of events.

It's an intriguing and entertaining thought. And I would add something else to it. For lo these many years, the increasing trend in law school faculty hiring has been to hire 1) people with doctorates in other fields and 2) people who have completed, at a minimum, two-year fellowships, and sometimes even longer-term pre-hire academic stints, as witness the increasing number of doctoral students in law in the U.S. who have become full-time faculty members. (Faculty hired from abroad have often had doctorates in law; the increasing number of domestic doctorates in law and the willingness of law schools to actually hire them is the new bit--or rather, the re-new bit, since they used to be more common and then seemed to fade.) In short, one way or another and for lots of reasons, many of them bad, law schools have been turning faculty hiring into a kind of uglier twin of university hiring across campus, seeking parallels or proxies for the same kinds of longer-term academic commitments and training that are reflected in doctoral and post-doc studies in other fields. Law schools have been academicizing their faculty, more or less, and increasingly they have done so even for faculty members without doctorates in other fields. 

Like a doctoral student in other fields, a law school graduate who (after the usual very brief stint as a clerk and in practice) takes the academic path sacrifices several years of active practice, gives up what might have been a remunerative job and certainly a potentially remunerative career path, and instead shows a deep commitment to the academic career track. And the question obviously arises: Why the hell would we, or need we, then pay those individuals more than academics in other disciplines?

Taking a two-year (or more) fellowship, let alone a doctorate in law, and devoting that time to teaching and often-abstruse scholarship is a clear signal of that person's willingness to accept less pay to gain the intellectual joys and many personal conveniences of life in the academy. More than that, it is a clear signal to the rest of the legal market that that person would rather be an academic, a signal that is compounded by taking them out of training and practice as a lawyer for an extended period of time. The "I could always leave this job as a law professor and get wealthy as a practicing lawyer" line, which happily is said more often about law professors than by them, was always pretty mythical. (That includes the organizing myth that being a smart law student in the sense that leads to the credentials that matter for law school hiring is a good indicator that one would be wealthy or successful as a practicing lawyer. Hooey.) But surely it is now not only mythical but nonsensical. In order to get the credentials that get you hired as a law professor, law schools now demand that you make a substantial commitment of time and allocation of intellectual resources that is almost tailor-made to devalue you as a prospective hire in the more practical and lucrative sectors of the legal profession.

If what we want is to hire law professors who walk and talk like academics, why on earth shouldn't they be paid like academics--by which I mean, of course, paid like other academics, folks who teach history or literature or biochemistry? And on the cross-disciplinary front, if we want law professors with doctorates in history or economics or some other academic field, why shouldn't we pay just enough to get them to come to a law school instead of their other academic department (assuming a premium is needed; it might not be, either because they're not as impressive in the other discipline or because we offer other perks that aren't available across campus), and not a penny more? 

As a side note, one might observe that medical school professors do a good deal better salary-wise than professors in, say, analytic philosophy. I've done a little reading about this but don't have much personal experience on this question. But it should be noted that there may be differences between, say, the MD who is hired to teach but also has substantial practice and clinical responsibilities and opportunities, and a pure Ph.D pursuing only pure research, and even if the latter is paid well much of that may be funding-based or supplemented by earnings from intellectual property. We could pursue a hiring model that more closely resembled this, in which case we would demand and expect that our professors be active practitioners. What we are actually doing is seeking people who...look more like analytic philosophers. We ought to pay accordingly, surely.

As Derek suggests, for some time one answer to that point has been the US News rankings and the metrics they used. The change in those metrics reduces the incentive to pay any better than other departments do. (Or we could get rid of rankings altogether, or come up with better rankings. How many of those would actually require high professorial salaries?) Certainly, when added to the US News change, it's harder to justify high salaries relative to the rest of the academy according to the "otherwise they would go into private practice" argument, when our hiring practices are tailored toward finding people who, in Stantz-like fashion, have demonstrated their commitment to not going into private practice--and then damaging their attractiveness to that alternative market on top of it. 

As a further side note, it seems to me that the folks for whom higher salaries compared to other sectors of the university are probably most justified are clinical faculty, because their ongoing practice of law makes their transition back to a competing legal employer more plausible at any given time. They are the ones closest to clinical medical faculty--not we fancy-pants doctrinal types. (Of course, the heavy and perhaps odd or obsessive concentration on "clinical pedagogy" and so on, which makes clinical faculty look more like doctrinal faculty in their academic profile and in their demonstrated commitment to not going back into full-time practice, may militate against that argument.) And there are some faculty who could argue, on the basis of the lucrative consulting that they do, that they really could go back into practice. (That's not me. More's the pity! Feel free to dangle a consulting offer at me.) It seems to me the answer is to give them opportunities to supplement their income with such consulting, while keeping their university salary closer to the one the rest of the campus subsists on. The change in US News metrics suggests that if they threatened to leave under such circumstances, the institution qua institution would have less reason to fear their making good on the threat.  

One last aside: One way law schools manage to pay as much as they do is by soliciting donors for endowed chairs--a rather large number of them. I dare say the money could be much better spent. I wonder whether some of those donors would be as eager to give if that money weren't going to a named chair, even if that money could be better used in other, less visible ways. But if Derek's general argument about the effect of changing the faculty reputation metric is correct, then one might think there would be less incentive for deans to to go out and fund-raise for those chairs, as opposed to using their time in other ways or focusing more of their energy on raising money that might be smaller in amount but better suited to the actual needs of the institution.   

Although it's not strictly necessary, I should add that my goal here is not to criticize the model of hiring we appear, willy-nilly, to have chosen, or to make some standard point about academics vs. practice. There are obvious benefits to be had from people specializing more deeply. (I do think our current hiring model is not well thought out, is, shockingly, engaged in more reflexively than thoughtfully, and is bad for a number of different forms of diversity. But I still can see reasons for it and benefits from it.) The "intellectual joys" I mention are real, and emphatically include teaching. Abstruse scholarship is not necessarily bad and practical scholarship is not necessarily good; you've got to read the actual piece before deciding whether it's any good, among other things. Faculties can benefit from having more practically-oriented and more abstract or purely intellectually oriented members. But all of this is not the point of the post, which is simply to ask how much, given the structures I've discussed, we actually need to be paying in salary for the kind of faculty that we appear to want most, and perhaps how much university administrations ought to allow us to pay.   

Derek also has some useful thoughts in his post on the value of having a ranking-independent institutional vision, something that law schools have generally not had to bother with as long as the golden calf of US News rankings and the worldview they represent served as a substitute. I'll offer an addendum to that in a future post.   

Posted by Paul Horwitz on January 4, 2023 at 02:43 PM in Paul Horwitz | Permalink | Comments (0)

The House Stalemate

I am quite heartened to see the House of Representatives actually engaging in a debate with everyone present. This used to be the norm, but nothing like that has happened in ages. Granted, this is just an internal GOP-debate for now, but still.

How can a power-sharing arrangement could work if a Speaker can be elected only with votes from both parties. Maybe that's next week's discussion.

Posted by Gerard Magliocca on January 4, 2023 at 01:59 PM | Permalink | Comments (0)

Tuesday, January 03, 2023

AALS 2023 begins!

I feel the need to apologize for the rain! It almost never rains here, but we do need some rainy days. Still, even when its drizzling, walking along boardwalk and watching the waves is fun. And there's lots of indoor offerings too. Here is my recent post about top things to do here - 

https://prawfsblawg.blogs.com/prawfsblawg/2022/12/aals-in-san-diego-2023-things-to-do-and-plan-for.html

and please come introduce yourselves at one of the panels and/or the USD Roy's sushi reception on friday - which all AALS attendees are invited to. 

Yesterday was a great pre-conference adjacent conference downtown San Diego on criminal justice and racial bias keynoted by Tom Tyler who spoke about the need to move from disparate treatment and intent to disparate impact and systematic inquiry about situational bias. The conference was hosted by the Institute for Human Studies at George Mason University, which brings diverse and interdisciplinary scholars together in great programs. 

Tomorrow if you are interested - we are having a panel cosponsored by the Contracts Law section and the Labor Relations and Employment Law on The Uniform Restrictive Employment Agreements Act ("UREA") and Emerging State Law -- on noncompetes, ndas, and talent mobility - and federal and state new efforts. See you downtown!

 

Posted by Orly Lobel on January 3, 2023 at 02:50 PM | Permalink | Comments (0)

Football

I stopped watching football about seven years ago. I reached a point that I could no longer watch and enjoy what had become gladiatorial. And I watched and read enough to believe that, given the game's nature and object, they could not make it "safe" or even "safer." Too many hits, large and small. I was done.

That said, I do not regard what happened to the Bills' Damar Hamlin as further evidence of football's unsafe nature. The collision between Hamlin and the Bengals' Tee Higgins was not unusually hard (for football). Some cardiologists speculate he suffered "commotio cordis"--cardiac arrest arising from an impact to the chest during a miniscule (40 millisecond) point in the heart's electrical cycle. Watch the play and the theory makes sense. Hamlin is standing someone upright and moving sideways when Higgins, moving forward, leads should-first into Hamlin's chest; Hamlin wraps his arms around Higgins and pulls him to the ground. But the point of contact between the two was the middle of Hamlin's chest.

This injury is neither unique nor common to football. It is more likely in baseball and hockey, especially among young players--taking a ball or puck to the chest at that vulnerable moment in the cardio cycle. And even then it is incredibly rare--15 or 20 cases per year, according to a 2017 story--and less common among adult athletes (something about the hardening of the chest wall as the body matures). At worst, it is a risk inherent in all sports. Not another reason (as if I need more) to turn away from football.

Posted by Howard Wasserman on January 3, 2023 at 09:43 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Whither laptops in the (in-person) classroom? (Updated)

Pre-COVID, the trend in higher ed, particularly legal ed, was to prohibit students from using laptops to take notes in class. Early studies showed students learned and retained information better when handwriting notes compared with typing often-verbatim notes. I had banned them from my room since spring 2009, based on a combination of those studies, a general belief that students were better prepared off handwritten notes, and a desire to create habits of engaging in a conversation while taking brief notes followed by a recording or transcript sometime later (i.e., what happens at a trial or deposition). About half the 1L faculty at FIU (7-8 people) did the same.

COVID changed a lot. Student habits of using computers became more entrenched, with students creating multi-screen, multi-device systems for online classes. Although I encouraged students to continue reading and taking notes on paper during my year+ of remote teaching, I doubt they listened.

So where do things stand on the other side (more or less) of COVID? I returned to my old system the day I returned to the classroom (Fall 2021); I heard no complaints. But an informal survey of my colleagues reveals four of us still ban; the rest allow computers, including several who previously did not. Early studies about notetaking have not been replicated in full.

What are faculty at other schools, especially those who did not allow computers pre-COVID, doing? Have student expectations changed and hardened, so they push back against bans? Do accommodations make this an impossible general policy?

Comments left open.

Update: Heard from one more colleague. He allows students to use devices for e-books and materials (which are cheaper and more available) but requires they take notes by hand, the computer reserved for reading and searching materials. I followed this approach by necessity one year in Civil Rights, when the new edition of the book was available electronically but not in print when class began in January. Students followed the no-notes rule, which was easy to enforce in a small (5 students) class; it becomes more challenging with 60+ students. Eboks made it more difficult and time-consuming for students to jump among materials (an issue in code classes). But that may be worth lowering the cost of books. Perhaps an intriguing middle ground for next year. In any event, that does mean five of us remain in the no-laptops-for-notes camp.

Posted by Howard Wasserman on January 3, 2023 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Speaker Deadlock

If the balloting for the Speaker goes on for a while, consider some strange consequences:

  1. Can you have a State of the Union Address if the Speakership is vacant? The House must invite the President to come for the speech, but how can they do that with no Speaker?
  2. The perennial favorite of con law professors ("The Constitution does not say that the Speaker must be a House member!") could come up when you get to, say, the fifth or tenth ballot?
  3. Suppose some compromise candidate emerges who needs Democratic votes to get elected. How would the House then be organized? As a kind of unity government with very open rules?

Tune in this afternoon.

Posted by Gerard Magliocca on January 3, 2023 at 07:31 AM | Permalink | Comments (0)

Sunday, January 01, 2023

2022 Chief Justice Annual Report

From 6 p.m. Saturday (continuing the practice since 1978). The history lesson tells of District Judge Ronald N. Davies of the District of North Dakota, who received a special appointment to serve on the Eastern District of Arkansas, oversaw the Little Rock desegregation case, and faced death threats for his decisions. That leads to this year's "theme" of the importance of judicial security--"the law requires every judge to swear an oath to perform his or her work without fear or favor, but we must support judges by ensuring their safety. A judicial system cannot and should not live in fear."

Some thoughts.

• Some have criticized Roberts for not writing about the issues surrounding SCOTUS--the Dobbs (and other) leaks, the forgotten leak investigation, attempts to use Historical Society donations to peddle influence, the Thomas' political misdeeds, dissension within the Court, the race to overrule precedent, etc. I will defend the Chief on that, because any expectation or hope that he might do so was fanciful. First, these reports are generally anodyne; no Chief has ever taken on real issues in a real way. Second, this is the Report on the Federal Judiciary, not the Report on the Supreme Court; Roberts' reports center lower courts and de-center SCOTUS.

• This Report differs in a number of ways. It is short--about 3 1/4 pages in the two-column format he adopted in 2019. The history occupies the majority of the Report--almost three full pages on Judge Davies, with three or four brief paragraphs (depending on how you count) on the modern. And the modern says noting beyond thanking Congress for enacting a law to enhance judicial security and privacy (not mentioning, of course, that the privacy protections immunize the Thomas' political shenanigans) and the agencies that protect the courts. He does not mention the man arrested outside Justice Kavanaugh's house (but see above, about de-centering SCOTUS).

• Telling the story of Judge Davies and Little Rock reveals the reality of desegregation litigation and constitutional litigation more generally. Brown of its own force did not compel integration in Little Rock. It required affirmative steps from the School Board, followed by a new lawsuit and Judge Davies' new orders and injunctions to compel school officials to integrate, stop state officials from interfering with local efforts, and prohibit local officials from using "extreme public hostility" as an excuse to delay integration.

Posted by Howard Wasserman on January 1, 2023 at 11:42 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

The New Congress

January 3rd will be no ordinary start to a new Congress. I plan to have C-Span on in the background while we take down the holiday decorations. Here's why.

  1. The House will try (and may fail) to elect a new Speaker. Deadlocks over the Speakership lasting weeks occurred in the 19th century, but we've not seen one in many decades. The key point is that the House cannot do anything else until a Speaker is elected. Whether that takes one ballot or 100.
  2. Once a Speaker is elected, challenges may be brought against a couple of GOP members on Section 3 grounds. One strange aspect of that process is that the challenged members have already voted for the Speaker, which you would think would make them members of the body. But it doesn't. How will the House handle these challenges? Past precedent (say in Victor Berger's case during World War I) is that the challenged member may not take his seat until the challenge is resolved. Then the typical way of dealing with the challenge is to have a House Committee investigate and report a recommendation. But instead we could see an immediate debate and vote by the full House. Do the challenged members get to vote or participate? Hmm . . . Stay tuned. 

Posted by Gerard Magliocca on January 1, 2023 at 08:12 AM | Permalink | Comments (0)

Saturday, December 31, 2022

Pope Benedict XVI's Legal Thought

Like many, I have been reflecting a bit on the work and thought of the late Pope Benedict XVI.  I am not qualified to provide a worth-reading reflection on these matters, but I did want to call attention to a helpful volume, edited by my friends Prof. Marta Cartabia and Prof. Andrea Simoncini, called Pope Benedict's XVI Legal Thought:  A Dialogue on the Foundation of Law.  Contributors include (in addition to the editors) Mary Ann Glendon, Andrea Pin, Joseph Weiler, John Witte, and many others.  

Here is the blurb from That Web Site:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

R.I.P.

Posted by Rick Garnett on December 31, 2022 at 03:00 PM in Religion, Rick Garnett | Permalink | Comments (0)

Thursday, December 29, 2022

George Santos, Lies, and Jewishness

I am skeptical of the new state and federal criminal investigations of George Santos will lead anywhere. I am persuaded by Eugene Volokh's arguments that campaign lies cannot be prosecuted--that counter-speech from the press and the rival candidate provide a sufficient check. (See this explanation for how opposition research works and why the Democrats failed so badly). Of course, that position rests in part on the difficulty of separating fact and opinion in political speech and in determining falsity in statements about complex policy and voting records. Santos presents something without nuance or uncertainty-factual and provably untrue statements about graduating from a college or having a grandparent born in one country at one time. But many people in American life, including politics, invent their biographies. I imagine SCOTUS would situated this in its recent line of cases refusing to criminalize politics.

There is a tempting counter argument that a candidate lying to get elected is akin to a job applicant lying in an interview--false statements to obtain a paying job (and the power that comes with it). But I think the public and widespread scope of campaign speech--paradoxically, speech is easier to sanction when it is said to a smaller group than a larger one--distinguishes the cases.

There is a nice question of whether this  affected the election and how that affects our sense of whether government can sanction his lies. Santos did not face a primary challenge for the nomination. He won the general election by more than 20,000 votes. I doubt that,when party affiliation is everything for many voters, 21,000 Republican voters would have voted differently had they known the truth about his background, education, and work history. Seeing the House GOP caucus embracing Santos and laughing about the story bolsters that thought. Perhaps Jewish identity would have prevailed over party identity, revolting against efforts to falsely appropriate our history and culture, especially the Holocaust. But I doubt it would have been 21,000 Jewish Republicans worth.

One unrelated point: Should Jews take pride that a political candidate lied to make himself Jewish and to attach himself to the name "Zabrovsky," the kind of name early-20th-century Jews ran away from. Maybe our societal position is not as tenuous as people fear--at least not in New York's Third Congressional District.

Posted by Howard Wasserman on December 29, 2022 at 11:52 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, December 28, 2022

In Memoriam, Megan Fairlie (Updated)

I am sad to announce that my FIU colleague Megan Fairlie died Tuesday, following a lengthy illness. She leaves two daughters, Aileen and Maca.

Megan came to FIU in 2007. She taught Crim, Crim Pro, and PR almost every year, so she taught and touched the vast majority of COL students the past 15 years. She wrote extensively on the ICC and international criminal law. She also was a wonderful friend and colleague; I will miss her contributions to the school's intellectual community.

More details, including about a memorial service sometime in the spring, to come.

Update: The family created a Go Fund Me for Megan's daughters. Please share the link.

Posted by Howard Wasserman on December 28, 2022 at 01:25 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, December 23, 2022

More on the "News"--and on "Matrix"

Here’s another item on the state of the news media, and on why we should guard against both the weakening of elite legacy newspapers and the disappearance of local news. The emphasis in this case is on the local side. This one involves a series of recent stories that have been published by Floodlight News, which describes itself as "a nonprofit newsroom that investigates the powerful interests stalling climate action," in collaboration with conventional news organizations. I don't consider advocacy "newsrooms" a substitute for straight news reporting, and I’m uneasy about such collaborations, and about the degree to which NPR and other news entities take money from and work with groups and funding organizations with particular interests and viewpoints. It's a perilous arrangement. But the reporting seems solid.

The stories involve an entity called Matrix LLC, which charmingly and vaguely advertises itself on its remarkable web page as "A Comprehensive Approach to Problem Solving." I'm surprised a phrase like that hadn't already been trademarked by David Brock or Jack Palladino. I would give Matrix a clearer description, but it dislikes clear and candid self-description ("'Invisibility is more powerful than celebrity,' reads a plaque hanging in Matrix's Montgomery office," notes one story). A lawyer for Matrix, on whom more below, calls it “a strategic communication resource for companies in a wide range of industries,” which is close to no description at all. Its clients are equally reticent. Frankly, I'm not sure what to call it. "Political consulting firm" hardly does it justice. "Secretive and pernicious organization" would be a good start. 

The first story, a collaboration between Floodlight and The Guardian that ran in July, describes, inter alia, apparent surveillance of journalists and politicians, often in the interest or at the apparent behest of two major power utilities, Alabama Power and Florida Power and Light (FPL). Drawing on internal documents they obtained, the reporters suggest that such operations were carried out by Matrix employees directly, or funded by and through Matrix.

One line in that story reads: "Matrix also exerted political influence through the press, with its operatives acquiring control of a Tallahassee-based politics news site, The Capitolist. That gave Matrix consultants and FPL executives input on Capitolist stories." That sort of activity is the basis for the two most recent stories, both published this week. The first is an NPR/Floodlight collaboration describing, in awful detail, "six news outlets across Alabama and Florida with financial connections to the consulting firm Matrix LLC." These online news outlets have varied politics but one thing in common, the story suggests: their willingness to carry water for Florida Power and Light and Alabama Power, attacking its critics and those who advocate for such outlandish schemes as actually holding a formal rate hearing for the first time in decades. Here's a passage:

A tally of the five still-functioning sites show they have a collective audience of 1.3 million unique monthly visitors. Many of their consumers are political professionals, business leaders and journalists — people who help set the agenda for lawmakers and talk radio shows in both states.

These readers have been unknowingly immersing themselves in an echo chamber of questionable coverage for years.

Matrix shrewdly took advantage of the near collapse of the local newspaper industry and a concurrent plunge in trust in media in propelling its clients' interests.

"The reduction in just the size of the press corps covering state government has created a vacuum that I think tends to be filled by people who have agendas beyond serving the public interest," says former Miami Herald executive editor Tom Fiedler.

That's true. I've used at least some of these sites. I assumed they were reasonably trustworthy. And they were certainly necessary, given the consolidation, decline, and death of so many local news outlets in this region, as well as the rest of the country. (This also reminds us why it's so important to maintain the quality of elite national newspapers, which have the resources and skills to provide coverage of events beyond Washington, LA, and New York. They can't or won't do so if those resources are devoted instead to daily recaps of jokes on late night TV, light features on Christmas at Dollywood, or major takeouts on 17th century history. Their decline into collections of thought-pieces by grad-school dropouts and wall-to-wall coverage of Twitter controversies disserves news coverage in the hinterlands as well as its power centers.) In their place, we have the sorts of online "news" organizations that have "collectively received, at minimum, $900,000 from Matrix, its clients, and associated entities between 2013 and 2020."

In the piece, "All of the media organizations deny their coverage was shaped by those payments and deny they acted unethically." In the same story, the editor in chief of an outlet called Alabama Political Reporter "acknowledges that Matrix also paid for reporters to do research for the firm, an atypical practice for newsrooms." His deathless justification: "We have to make money." Particularly poignant, albeit disgusting, is the story’s discussion of an outlet called Florida Politics:

Of all the leaders of sites with links to Matrix, only one, Florida Politics Publisher Peter Schorsch, acknowledges he doesn't observe traditional journalistic practices when deciding what to cover.

In an interview, Schorsch says he practices "combination journalism": He says Florida Politics' coverage is not dictated by advertisers, but it often gives them favorable coverage. And, he says, sometimes he gives them more coverage.

"Once a relationship is developed, if they come to us with the pitch [to cover a story], yes, they are going to be at the front of the daily line as opposed to a national advertiser making a pitch who I've never dealt with before," Schorsch says. "I will say there's a very big wall in our operations" between advertisers and coverage.

A 2021 invoice shared by Schorsch shows that Florida Power & Light paid the site $43,000 for advertising, enough to cover the cost of a full-time reporter. Schorsch says his reporters do private research for clients too, though he would not specify what that entailed.

By his own account, Schorsch also was paid roughly $100,000 by Apryl Marie Fogel, the publisher of Alabama Today, another of the Matrix-linked sites. The money went for help with "editorial and digital tech services," he tells NPR and Floodlight. Fogel, who is also former Matrix CEO [Jeff] Pitts' romantic partner, received more than $140,000 from Matrix, the firm's records show. (She declines to comment on her ties to Matrix, saying "not my monkeys, not my circus.")….

[Schorsch] defends his model of journalism.

"I'm not trying to pretend that I'm an angel or anything like that," Schorsch says. "But ... man. If I go, there's nothing left in this f***ing space. There's like the Tampa Bay Times, the Miami Herald, and you're down to nothing."

It should be obvious that there is journalism and there is not-journalism. "Curatorial journalism," for example, is not actually journalism. And certainly "combination journalism" is not either. What three decades of enthusiastic references to “democratizing the press,” “citizen-reporters,” “public journalism,” “cheap speech,” and so on miss is professionalism, a concept that does not include within it detailing one's reporters to do "private research for clients." At that point, you might as well call yourself a private investigative agency that happens to publish a pamphlet from time to time to amuse the public. But Schorsch isn’t wrong when he says there's not much left in this f***ing space.

The third, but I hope not the last, story, also with NPR, is no less astounding. You should just read it. In short, it describes a freelance producer who did work for ABC News in Florida—while also taking thousands of dollars from Matrix and apparently using her credentials as an alleged journalist to attempt to undermine and embarrass individuals whose positions were uncongenial to Florida Power & Light.

The usual denials and refusals to comment are involved. An added twist is that the two leading figures at Matrix, Joe Perkins and former CEO Jeff Pitts, fell out when Pitts left the entity and are in litigation, so there are plenty of opportunities for each to blame the other. In other stories, when asked what Matrix has actually done for them, its clients have said things like, "As you know, under current law, consultants and advertising firms are not required to detail expenditures....Matrix has assured us that should the law change, they will be more than happy to comply." It is apparently unthinkable that a Matrix client might volunteer information about what Matrix did for it, or instruct its client to do so. (The client in this case is the mayor of my university’s hometown, Tuscaloosa’s Walt Maddox.)   

I should add that I’m less concerned here about lawbreaking; it's not clear any is alleged. Rather, I'm disturbed by the corruption—in the sense, more important than the narrower sense of dishonesty or illegality, of moral contamination or depravity. Most corrupt conduct is perfectly legal. It's the way the world works, although being comfortable with phrases like "it's the way the world works" is itself pretty good evidence of one's corruption. (The older I get, the more I appreciate the value of naïveté. The journey from innocence to experience is a lifelong one. The journey from experience to corruption is short and swift.)

I should be clear that the corruption doesn’t run along partisan lines. As the stories note, Matrix was happy to subsidize "news" outlets of varied politics, as long as they came through in the clinch. The list of folks who have used Matrix's services or received its money, only some of whom have ended up in prison or other legal trouble for various things, cuts across party lines, even though Alabama is largely a one-party state. It includes former Democratic governor and convicted felon Don Siegelman and former Democratic gubernatorial candidate and current Tuscaloosa mayor Walt Maddox. But it has also helped Republicans, business interests, business-aligned PACs, and so on. It includes some politicians I used to respect, although respecting someone who consorts with Matrix is impossible for a decent person. Using corruption in the small-c sense, I have long held that the problem with my home state of Alabama is that it leaped directly from 19th-century corruption into 21st-century corruption without much of a 20th-century good-government phase. Matrix is the dictionary definition of 21st-century corruption, and it is bipartisan. Its corrupting effects are evident. Maddox used to be thought of as a pretty decent mayor. It's been some time since anyone sensible has said that about him.

That took me a little further afield, for reasons I'll note at the end. But the connection to the news is evident. Only some of our readers live in the usual metropoli, and even those places have been losing their newspapers at a rapid rate. (I won't speak of broadcast news, for evident reasons.) If you live in most of the country, you too have probably turned to what look like independent online news sources that cover news or local events in your state or region. Of course it's the Internet, and you may approach them with reasonable skepticism—as you may also approach more established news entities. But if they look legitimate, seem to act legitimate, and occasionally carry a useful and decent story, you may think you are getting a proper substitute for the local papers we used to have. The Matrix stories indicate otherwise. As the story about the ABC producer suggests, these activities make it hard to assume that even established news entities are able to police their own field. As for the others: well, "We have to make money." 

Personal disclosure: Stories about Matrix are particularly interesting to me because it was heavily involved in my wife's unsuccessful reelection campaign when she served on the Tuscaloosa City School Board, with Matrix having been paid some $100,000 by a slate of candidates in that local school board race. (The why is beyond me. But construction is a big deal in any city.) Its clients included my wife's successful opponent, Cason Kirby, a graduate of my law school who paid Matrix some $20,000 during that campaign and who now has the dubious honor of having acted as a lawyer for that entity. (His wife, Madolyn Kirby, was or is a Matrix employee, including being paid by Matrix while serving, apparently without salary, as campaign manager for Walt Maddox’s gubernatorial campaign.) It was also paid by Lee Garrison, the apparent architect of running that slate, who while on the board regularly advocated for the school system's bond business to be handled by the investment banking firm of Frazer Lanier. After his political service, he went to work for that firm, which later on, over objections, became the sole firm handling a $500 million urban development plan that has been Mayor Maddox's signature project. Finally, a breeding ground for both employees and clients of Matrix is the Machine, a student group, also secretive and pernicious, that has operated at the University of Alabama for decades and was involved in helping defeat my wife. 

I think this disclosure is called for, but it does not affect the accuracy of anything I wrote about, or my concerns about the corruption of--among many other things--state and local news sources. It affects only my sense of pleasure in sharing these stories.  

 

Posted by Paul Horwitz on December 23, 2022 at 11:29 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, December 21, 2022

Twitter as Institutional and Self-Corruption

At his Substack page, Josh Barro has a useful intervention into the relationship between Twitter and journalism. As a former journalist--very briefly, but it was a formative experience--with an abiding interest in the press and its role both in the First Amendment and in our social, legal, and political firmament, I found it to be a good one-stop source of reasons why the addictive relationship between legacy press institutions and social media has been so damaging. I say so somewhat sympathetically, since it is clear that the managers of those institutions hoped they would help stave off decline in an industry facing so much competition from online sources and so much apathy from readers. But only somewhat sympathetically, since it has long become clear both that this is a dubious hope and that the strategy has maimed the patient to a degree that calls into question the point of keeping it alive. Barro's bottom line is that rather than demand that journalists recently thrown off Twitter (quite wrongly, although I think Taylor Lorenz is a one-person wrecking crew for the quality of any serious newspaper she has worked at) be reinstated, newsroom managers should treat the event as "an opening for [them] to do what they ought to have done long ago: Order their employees to drop their Twitter addictions, stop sharing their pithy opinions in an effort to build a personal brand, and get back to work." Some arguments he offers, mixed with a few observations:

  • "Twitter’s usefulness for reporting has sometimes turned into a dependency." Quite right. It is astounding the number of stories in the Times--the serious paper I read most frequently, despite its evident flaws--that report on Twitter controversies, rely on tweets for color and quotes, or use Twitter as their sole or near-sole fund of sources. As he notes, using social media as a databank for sources and quotes is "also biasing and distorting — the loudest voices on Twitter within a given field, such as medicine, often aren’t representative of broad opinion within the field." And it fosters incredible laziness. Former American Lawyer editor Steven Brill, a great journalist in his own right, used to instruct his reporters, when working on a piece about a lawyer at a firm who declined to cooperate with a story or profile, to pick up the phone and call every single person at that firm until they found people willing to talk. When Woodward and Bernstein received a list of employees of CREEP, they visited every person on that list, in person and often multiple times. That's called "shoe-leather reporting"--talking to numerous people, reading innumerable documents, and doing it all over again. Trawling or cherry-picking social media is no substitute for it. But it is easy--and, not insignificantly for newspapers, fast and cheap. 
  • "Twitter has made it very difficult to enforce editorial standards." That's a correct claim, in my view, although very broadly stated and without much causal explanation in itself. But Barro offers more here. One problem, he notes, is that reporters' addiction to opining online has damaged readers' trust. Of course this is not the fault of social media alone; in the last several years many journalists have argued that journalists ought to abandon what's been called "a model of professed objectivity." I think they're wrong. (And the rote response that "objectivity is a myth" is woefully insufficient. Of course it is: It's an organizing belief and model of conduct, one tied to that institution's model of professionalism. That it is not perfectly achievable has been understood by just about everyone always. It is still a better organizing ideal for most news organizations than the alternative--and although its contemporary critics argued that abandoning it would help readers, lead more clearly to truth, and avoid obfuscation, it has achieved none of those results. Exploring the nature of a myth is always useful; equating "myth" with falsehood or assuming that the opposite of that myth is necessarily a good thing is fatuous.) Twitter and other social media have intersected with that point because loudly stating those views online drives up the (online) popularity of those individuals and is good for their personal advancement and their egos. That doesn't mean it's good for their institutions or for journalism.  Barro adds that the tendency toward conformity online, the desire to keep one's admirers and avoid getting shot at from within one's own lines, exacerbates the tendency of the reporters who are eager to share their views and politics--which are generally the same views, within the elitepress--to fall in line and avoid messing with the conventional wisdom of the moment, while causing others to remain silent for the same reasons. 
  • Barro argues that "Places like The New York Times — having observed that their staffs are constantly expressing their biases out in the open, in a format that admittedly gets a lot of engagement — have increasingly brought that viewpoint-driven journalism into their news pages, becoming explicitly liberal rather than implicitly so." Again, I think this is right. To use the overused buzzword of the day, we might see this as a problem of political economy. In their effort to survive, newsrooms have been less likely to insist that journalists maintain professionalism and more likely to give in. That's true both at a micro level, since individual reporters develop their own fame and constituencies online and make it costly to resist them, and at a macro level, as newsrooms both adapt to and buy into the raft of premises that encourage some reporters to opine all day long. That is not to deny the presence of sincere beliefs about these things. But like anything else in America, these beliefs are also monetized and incentivized, and their formation and growth is in part a matter of the economic incentives to act in this fashion and then construct, knowingly or not, a set of beliefs and rationalizations to justify it. Many newspaper reporters who abandon old-fashioned standards of professionalism to opine about politics and culture "sincerely" believe what they argue, but those views are also shaped by ambition and the love of fame. Many newsrooms that justify this behavior "sincerely" believe they are evolving to meet changing views and a new generation of reporters, but those views are also shaped by a love of clicks, a need to survive, and a fear of online and offline staff rebellion which they lack the backbone to resist. (A.G. Sulzberger has many possessions, but a backbone is not one of them.) 
  • Barro argues that "marinat[ing] in the stories and the viewpoints about those stories that dominate on the platform" has "impaired news judgment." One might fairly observe, perhaps by quoting Pauline Kael, that reporters at the Times and similarly elite institutions were always marinating in something, a culture or locale that affected their worldview. But that does not make his observation incorrect. The stories and debates that draw the most attention on Twitter and other social media do not necessarily reflect the lived experience of millions of other people and most certainly do not necessarily reflect their priorities; but they increasingly seem to dominate what gets reported and how--and what gets neglected. I don't mean that in a conspiratorial sense, but in the sense that the fact that their staff live in a 24-hour world of artificial controversy has led these papers to ignore or give unduly short shrift to many other stories while focusing inordinately on the kinds of pseudo-events and pseudo-controversies that dominate that space and get attention there. 
  • Barro argues also that Twitter and other social media sites, or semi-social media sites like Slack, have encouraged newsroom revolts. He adds, "Of course, a lot of people like the idea of more worker power, but the workers here tend to have bad ideas about how to run a news organization because they are so ideologically unrepresentative." I would put the latter point a little differently. I agree that they may well have bad ideas about how to run a news organization, but I'm not sure the problem is ideological. It's more that they don't care about running a news "organization" qua organization. Their interests are more personal and individual than institutional. In truth, many of them doubt the value of institutions altogether, at least insofar as those institutions act as if they have a particular function--and thus limits on what is within the expertise and jurisdiction of that institution, and on what they should and should not do, concern themselves with, or allow within the context of that institution's operations. Others, to be sure, are pushing on the definition of the institution and its function, and this is a natural and valuable part of debate and change within institutions. But in some cases the argued limits are so vaporous, the arguments for the interconnectedness of everything (and thus the obligation of the institution to do and say everything) are so vague and encompassing, the institutional loyalty is so thin, and the sense that an institution has particular functions and limits, that this is a good thing, and that people who want to do other things might perhaps do so elsewhere, is so lacking that the position is closer to calling for the dissolution of institutions and institutionalism than of calling for their evolution or reform. To maintain institutions under those circumstances requires managers who have both a sense of what the institution is there for and a willingness to assert and defend that sense, including against its own members. Although many discussions of these issues focus on the younger rebellious generation and its arguable errors, the primary responsibility and the greater problem is the lack of either will or a clear sense on the part of the older managers. The greatest crisis of our time is institutional, and the crisis lies as much or more with those who are charged with maintaining them as with those who are challenging or simply not interested in them.
  • As Barro notes, that institutional point is closely related to another one: individual reporters, especially star reporters, "have gained unsustainable power at the expense of institutions." (As he notes, citing a useful piece on the relationship between stars and institutions by economist Allison Schrager, this issue is not limited to newspapers, but applies to a number of institutions today.) "One reason it’s been hard to rein in reporters on Twitter is they have their own reasons for behaving as they do." By being loud and opinionated and frequent in their tweets and posts, they get attention. (Not that that had anything to do with the rise of Prawfsblawg!) They become famous. They become "brands." They can monetize those brands. They can advance their own careers, with or without any benefit accruing to their institutions. The quality of their underlying and actual work, the thoughtfulness of the opinions they needn't voice but keep voicing anyway, the falsifiability of their claims, their willingness or unwillingness to admit error or correct the record, all these have some effect. But all of these are dwarfed by their fame and their "brand." (Not least because of polarization: their friends will happily forgive their errors or skip checking for them, and their adversaries will realize their own reputational and financial gains by harping on those errors. In the status game, polarization is a win-win scenario.) They needn't care about their home institutions; they can always leave, and as long as they remain, their weak-willed managers will probably give in to them. Of course part of this is about money, for both the reporter and the home institution, and about self-advancement in a fairly mundane sense. But money is not the only good people like to amass, and surely the profit to their status and ego is a significant element.

I would add that because the data show a strong liberal identification in reporters at elite newspapers, a lot of this can be viewed in tediously political or ideological terms. (I leave out things like magazines that take openly political views, and where it is perfectly natural that most people who work there will be associated with a set of political and cultural views.) But that seems beside the point. Their politics dwindle in importance next to their revealed preferences. They may call themselves liberal, progressive, conservative, anti-liberal, anti-capitalist, anti-elite, pro-justice, communitarian, integralist, or anything else. But their actions suggest the standard American loves: of fame, status, and money. Those are the truest, deepest politics of most social-media celebrities who are both addicted to those sites and addicted to leveraging them for personal gain, whether in financial or ego terms. (This is true even of some of the voices who rail most loudly about things like "disinformation" and "misinformation," however poorly defined, and argue for greater control of social media and perhaps of information more generally. They may believe these things; but what matters most is that they have built a profitable brand by arguing for them on social media.) Unless they are willing to take strong stands and suffer for them in the short run, institutions are no match for this kind of rampant self-serving individualism.

We could call this a social-media problem, or we could see it as a cultural problem, an institutional crisis more generally in contemporary society, that is amplified and exacerbated by social media. Either way, I think Barro is right to see the current moment not in pro- or anti-Musk terms but as an opportunity that has been handed to legacy news institutions. They ought to use the moment to reassert a modicum of responsible control: to take their reporters, qua reporters, off Twitter and other social media and to break a cycle of addiction that has not only failed to rescue them but has done incalculable damage to them as institutions.  

Does any of this apply to other institutions? Does it apply, for example, to academics, including legal academics? Does it apply to their own relationship to Twitter and other social media, their own interest in individual self-advancement, their own ideological conformity, their own damage to the general profession and particular institutions they are supposed to serve, and the failure of their institutions to address it--indeed, in many cases, those institutions' complicity in encouraging it? That question will have to wait for another time. (But the answer is yes.)  

Posted by Paul Horwitz on December 21, 2022 at 01:44 PM in Paul Horwitz | Permalink | Comments (0)

Monday, December 19, 2022

What if "You've Got Mail," but Jewish?

In considering whether When Harry Met Sally . . . is a Jewish movie, I argued no one would believe so if you replaced Billy Crystal with Tom Hanks--and get You've Got Mail. Behold Hanukkah on Rye, the 2022 Hallmark Chanukkah movie that earns such Hallmark-high praise as weirdly good and terribly sweet.

At some level, I have the same complaints I level at all of these movies--they place Chanukkah at the center of the adult (as opposed to kid) Jewish lifecycle and calendar and ascribe the holy day a force it does not have for most Jewish adults. Adults in these stories mark the year and their lives by Chanukkah. So from last year's Eight Gifts of Hanukkah:

    • A Jewish contractor tells his Jewish client that construction on her optometry office-a business with no discernible connection to Judaism or the holiday--will "be done by the Eighth Night of Chanukkah."

     • That client's ex wants to get back together because "maybe it's the holiday, but I have been taking stock of my life." Umm, we have a month plus ten days devoted to that, nowhere close to this time of year.

    • A family gathers for the first night to light candles, etc., then the child in the family asks whether she can "unwrap her Chanukkah presents"--as if anyone in a real conversation in that context would need the adjective. OK, that may just be bad writing, but it illustrates how these movies find it necessary to hit everyone over the head with the fact that these people are Jewish.

Although these recent movies have included Jewish actors and crew, they continue to present Chanukkah as "Jewish Christmas"--that most wonderful time of year when we gather we family, do not want to be alone, and make a lifetime of memories that guide us through life.

HoR does not suffer from those problems because it is not an original story. It is a Jewified You've Got Mail, with identifiably Jewish characters played by Jewish actors and set within the eight days of Chanukkah. The timing sort-of makes a little sense because the story revolves around latkes and a secret latke recipe, although it still centers Chanukkah as the time of year where Jews gather, take stock of life, long to find love, etc. Anyway, Jacob, the fourth-generation operator of LA-based deli Zimmers, relocates to New York to open a new location on the Lower East Side; Zimmers is known for combining old-time Jewish deli with modern takes and a wider menu. Molly is preparing to take over Gilbert's, her family's fourth-generation, very traditional, but secretly struggling, deli in that neighborhood--if she only can figure out how to make a good egg cream (hint: stir the chocolate into the milk before spritzing the seltzer). Meanwhile, their respective bubbes sign them up for a mysterious New York-based matchmaking service in which people write handwritten letters to a pseudonymous match ("David" and "Beth") that a courier collects and delivers. Multi-generational family dynamics appear to center the  final act.

Some non-Jewish-focused spoilers on HoR after the jump; if you do not want to know how the movie ends, stop reading.

I will leave with this point. I can give Hallmark credit for wanting to depict Jews at Christmas, the only people in the Hallmark Cinematic Universe who want to stay in The Big City. But then tell a somewhat realistic story of American Jews. If it wants a December-based Jewish-American rom-com, set it at one of the Matzah Balls in many cities on Christmas--events designed for young Jewish singles to meet. Or at a Christmas-day Chinese restaurant comedy show. Importantly, neither story has anything to do with Chanukkah--which may be over or not have begun on December 25; each is about how Jewish-Americans make a unique culture in the larger society. If Hallmark insists on  a Jewish-holy-day-themed story, set it at Passover or Yamim Noraim--the days that matter on the Jewish calendar. Otherwise there are better Jewish rom-coms that need not squeeze into a short holiday.

Continue reading "What if "You've Got Mail," but Jewish?"

Posted by Howard Wasserman on December 19, 2022 at 01:10 PM in Culture, Howard Wasserman, Religion | Permalink | Comments (0)

Sunday, December 18, 2022

AntiJewishness: Societal or Individual

Rob Eshman is on to something. We miss something when we amplify individual antisemitic acts or statements but ignore the broader context or reaction by government and the rest of society. What matters more in evaluating American Jewry's position and security--that Kanye runs around saying bad things or the near-universal condemnation; that someone vandalizes a synagogue or that government and the rest of the community respond appropriately.

Eshman's argument sounds in a piece of the debate over hate speech. Nazi Germany became Nazi Germany because law and government policy instantiated Jewish inequality and broader society shared--or do not push back against-- the views reflected in those laws. It did not become Nazi Germany by allowing individuals or groups to spout Jew-hating ideas. And we do not become Nazi Germany because Twitter is loaded with assholes.

Eshman captures his point in two sentences: "No Jew in the history of Judaism ever looked smart by saying things aren’t as bad as you think," but "that's an argument for nuance, for data that reveals a deeper understanding of where we stand before we decide to flee."

I serve on the board and exec comm of my temple and we will participate this year in an ADL-sponsored educational program on antisemitism. I want to try to keep Eshman's point in mind.

Posted by Howard Wasserman on December 18, 2022 at 10:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, December 17, 2022

Automation & Higher Ed

I was delighted to see this thoughtful review of my new book The Equality Machine in Inside Higher Ed focused on some of the questions nearest and dearest to prawfs' hearts: the future of the professor and higher education as AI becomes more and more part of our learning and teaching. In The Equality Machine, I have a chapter that considers robots and automation in education but does not delve into universities and higher ed. Here's the review:

If the dream of creating high-quality/low-cost scaled online programs is ever to be realized, artificial intelligence—AI—will likely be the key enabling technology. The job of the AI in a scaled (high-enrollment) online course will be to optimally connect the instructor to the learner. The AI will determine when the human instructor should coach, encourage and engage with the learner—and when to hold back. The professor and the AI will collaborate to scale the relational model of learning that is the secret sauce of effective instructional practices.

Integrating faculty and AI to scale quality online learning is, to my knowledge, today more an idea than a reality. After reading The Equality Machine, however, I’m more hopeful than ever that this vision will come to fruition. While not focusing on higher education, the book provides enough examples of the transformative powers of digital technology to enhance human flourishing that some level of academic techno-optimism may be warranted.

Lobel, a law professor at U of San Diego, sets out to counter the conventional wisdom that technologies like AI offer more threats than benefits. The book traces a range of examples where the principled and ethical use of big data analysis and AI are being utilized for progressive aims. Examples include using digital technologies to expose and correct discrimination in hiring, promotion and compensation. Gender and racial pay and position gaps can be more effectively addressed with good data, enabling employers and employees visibility into the persistent labor market inequities.

Some of the most powerful examples of the potential for digital technologies to improve well-being described in The Equality Machine come from the domain of health and health care. Lobel describes the efforts of pioneering physicians and researchers to pair clinicians with algorithms for earlier diagnosis and individualized treatments. Soon, AI-enabled medical devices such as insulin pumps will dynamically adjust dosage levels to avoid health crises for diabetics before they occur.

Likely the most controversial parts of The Equality Machine will be Lobel’s thinking on the future of sex robots. As with the entire book, Lobel’s thinking on technologically enabled intimacy bots is nuanced, balanced and complicated. She examines the negatives of reinforcing existing sexist and racist stereotypes of the sex-tech industry but ultimately comes down on the side of optimism. Smart sex robots have the potential to relieve loneliness and enhance happiness, and their creation should be met with less fear and more thought, debate and discussion.

While The Equality Machine seeks to offer a positive vision for technology in advancing social justice, equality and happiness—the book is by no means a defense of big tech. Lobel is highly skeptical that the tech industry will prioritize inclusive and pro-social applications and systems in the absence of scrutiny, regulation and advocacy. The book offers ideas about how to engage with the tech industry to shift incentives toward promoting equitable design.

In reading The Equality Machine, I kept wishing for Lobel to turn her analytical lens to issues of tech, companies and higher education. What might we envision as the role of platform companies, big data and AI in creating accessible, affordable and high-quality online degree programs? Where are the artificial intelligence and university leadership communities coming together? How might we extend the idea of creating equality machines to the working of higher education?

 

Posted by Orly Lobel on December 17, 2022 at 05:44 AM | Permalink | Comments (2)

Friday, December 16, 2022

Infield Fly strikes again

Writing about the Infield Fly Rule produced one key takeaway--it is everywhere. Once we see what defines the play and warrants a rule change--unexpected action, substantial advantage and exclusive control to actor, inability to counter--it is easy to find other sports responding to similar plays with similar rules changes.

The NFL offers the latest example. It "reinterpreted" a rule to prohibit teams from holding the ball on top of (as opposed to on) the kicking tee on kickoffs. This placed the ball an extra 1/2-inch off the ground (1 1/2" inches rather than 1"), allowing the kicker to get under the ball more and gain more height and hang-time on the kick, allowing the coverage team to get downfield quicker for shorter returns. And it worked--the Raiders' opponents averaged more than four yards fewer per return than league average.

This possesses all the features of the infield fly situation--teams ordinarily place the ball on the tee rather than on top of it; the kicking team controls how the ball is placed on the kick-off; it gives them what appears to be a substantial advantage on the play; and the receiving teams cannot counter the play because the coverage team's extra running head start overwhelms even the best blocking-and-return schemes. This is what leagues impose limiting rules (or limiting interpretations) to eliminate that unusual play and thus the extraordinary advantage.

The NFL did not explain the reinterpretation in these terms. It said the practice produced the same effect as using a 1.5" tee, whereas the rulebook limits tees to 1". Still as Deadspin says, it is hard to believe the league would have cared unless it produced a meaningful one-way benefit and incentivized other teams to do the same.

Posted by Howard Wasserman on December 16, 2022 at 12:12 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, December 09, 2022

No state standing in SB8 suit

Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.

This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.

Posted by Howard Wasserman on December 9, 2022 at 08:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Thursday, December 08, 2022

Changing arguments

 Mike Dorf and Will Baude discuss changing dynamics at SCOTUS arguments--including an increase in justices cutting off attorneys, demanding yes-or-no answers to nuanced questions, and not letting them give reasonable answers and making long arguments in the form of questions. Baude argues they increasingly sound like congressional hearings and attributes a number of possible causes, including the new round-robin format, increased polarization, and live-streaming. For what it is worth, at least they sound like they know what they are talking about in their questions, unlike most legislators.

While listening to the 303 argument and before seeing Will's post, I had the idea that the individual-justice questions portion sounded different, with lawyers not bothering to answer many "questions." At one point,the Colorado SG expressed "hope" that he might be able to answer someone's question, because that did not seem to be the point of the exchange.

I hope the blame does not lie with livestreaming. Many of us spent many years arguing for televising arguments, believing the Justices would not undermine their institution.

Posted by Howard Wasserman on December 8, 2022 at 02:33 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Crooked State Elections

I wasn't thrilled with the argument in Moore. The Court seemed to converge on the position that Chief Justice Rehnquist's concurring opinion in Bush v. Gore should become the law. This is not good for a couple of reasons. First, Rehnquist's opinion was not well-reasoned. Second, adopting his position will create an excuse for lots of election related litigation over state courts allegedly misinterpreting state law. No matter how deferential the standard of review is, everyone will want to test it out in 2024 and cause mischief

There is no great solution to the problem of a crooked state election (say, Lyndon Johnson stealing his Senate seat in 1948). Congress is not well-situated (especially these days) to resolve such issues. Neither is the Supreme Court. State courts also have their problems, but I'm more inclined to just leave it with them.

Posted by Gerard Magliocca on December 8, 2022 at 11:35 AM | Permalink | Comments (0)

Wednesday, December 07, 2022

AALS in San Diego 2023! Things to do and plan for!

AALS 2023 is coming to town! I can't wait to see hundreds of colleagues coming down here for several event-packed days. Keep in mind that in addition to the regular program there are quite a few satellite conferences being put together by organizations such as ACS. 

Still- it's SAN DIEGO. In January! It's warm and sunny and there is so much to do and see. 

first - all are welcome to USD Law School AALS Reception at Roy's Restaurant 333 W Harbor Dr. January 6 at 6-8pm.

next, here are my top 10 [which is really top dozens but sneakily categorized in ten]:

  1. La Jolla Cove. The rocks, the cave, the seals, the birds. It can get stinky but it’s a good kind of stench. Eat breakfast at Brockton Villa to watch the natural beauty, the swimmers, and the kayaks. Have drinks at sunset at George’s, Dukes, Eddie Vs, Herringbone, Puesto or any one of the other upscale dining places. The Cottage, Sugar and Scribe, Brick and Bell, Parakeet, The Living Room are all nice for lounging or brunch. Bring your laptop to the Living Room for an office setting with a view. Walk up along the village to the art galleries, fun boutiques, and the La Jolla Museum of Contemporary Art. Visit Trilogy for an amazing rooftop vegan eateries and aerial yoga. If you have time on the way back, drive up to Mt. Soledad for 360 degrees of all of San Diego. The cross at the top has been giving the 9th Circuit quite the headache for years.
  2. La Jolla Shores, Scripps Pier, Birch Aquarium, Glider Port, Black’s Beach. You can walk from the shores all the way to UCSD and the Salk Institute, walk down to Black’s Beach where clothes are optional. The Birch Aquarium has stunning views and educational hands-on activities – it’s small and intimate - it’s not Sea World if you know what I mean (Sea World can also be on your destination plans particularly if you are coming with kids). La Jolla Shores is known for its Italian food (though little Italy downtown definitely competes) - you can find just next to the beach at the shores - Piattis, Osteria Romantica, Barbarella...all good choices,
  3. Torrey Pines Reserve. 1750 acre cliffs above the beach, coastal wilderness, trails for all hiking levels. Breathtaking. Stop for tea at the Lodge at Torrey Pines, a beautiful hotel/spa/golf course that is an architectural homage to California Arts & Crafts Movement.
  4. Balboa Park. "1,200-acre of park, natural vegetation zones, green belts, botanical gardens, and walking paths, over a dozen museums, several theaters, and the world-famous San Diego Zoo. There are also many recreational facilities and several gift shops and restaurants within the boundaries of the park. Placed in reserve in 1835, the park's site is one of the oldest in the United States dedicated to public recreational use."
  5. Coronado Island. Take the ferry or drive the long bridge (it isn’t really an island but a peninsula). Go ice-skating outdoor on the beach at the stunning Hotel Del Coronado.
  6. Crystal Pier. Pacific Beach just south of La Jolla has a long boardwalk, beautiful beaches, and you can run or walk from the Crystal Pier all the way to Belmont Park, the historic amusement park founded in 1925, and ride the wooden roller coaster. If you see Slomo rollerblading along the way, say hi and tell him you watched the documentary about him in the NY Times and here (short of it - he's a former neuroscientist/psychiatrist who decided on radical lifestyle change: "do what you want to" one of his oldest patients told him is the secret for a longlife, so now he roller-blades on the boardwalk every day all day long in slow motion).
  7. Sunset Cliffs. If La Jolla is the upscale village, and Pacific Beach is the student surfer hangout, Ocean Beach is the hippie beach community. Each unique and fantastic in its own way. In between all of them are Mission Beach and Mission Bay – where you can, like with PB, rent bikes and roller blades and ride for hours. Also a good place to practice your stand up paddleboarding. 
  8. Old Town. History, culture, authentic Mexican food. Right next to our beautiful USD campus. Convoy is close by - home to wonderful and numerous Asian eateries -- Korean (Korea House, Tofu House), Chinese (Jasmine, Emerald), Japanese (Sushi Boat)...
  9. Encinitas. Another awesome beach community, with world-famous surf. Go meditate at the Zen Garden at the Self Realization Fellowship (check to see if it is open). If you are coming with the family, Legoland as well as the Safari Park are nearby in Carlsbad; Solana Beach and Del Mar are also pretty great. This Del Mar restaurant was just awarded three Michelin stars
  10. Gaslamp District and Seaport Village. This is right where the AALS conference takes place so you will figure it out. But make sure you walk all the way to the Harbor, Embarcadero and the USS Midway Museum. Perhaps even go whale watching or just a short harbor cruise between panels.

There is still more. Here's for example a top 25 free things to do. And feel free to add your own San Diego favorites in the comments or ask me any questions that you might have about planning your trip. Here's to a great #AALS2023!

Posted by Orly Lobel on December 7, 2022 at 06:10 PM | Permalink | Comments (1)

Which side of the bench?

Here is a different way of studying SCOTUS arguments--which side of the bench is most active in questioning and draws the most attorney attention? For right now, the answer seems to be to Chief's left/attorney's right--Alito, Kagan, Kavanaugh, and Jackson.

This is of limited long-term use (as opposed to looking at individual justices) because seating changes frequently. It might have been of interest with the long Breyer-juniormost Court (1994-2005). On the other hand, I would not be surprised to see the current Court remain for the next 7-10 years, so maybe that will give us a longer sample.

Posted by Howard Wasserman on December 7, 2022 at 02:05 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Michalski on FJC on pro se electronic filing

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing the Federal Judicial Center's study of electronic filing by pro se litigants.

Posted by Howard Wasserman on December 7, 2022 at 01:55 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 06, 2022

Quick thoughts on 303

I found a few interesting things in the questioning of Kristen Waggoner, counsel for petitioner in 303 Creative. (Mike Dorf has more about the "culture war" lines in the argument).

Continue reading "Quick thoughts on 303"

Posted by Howard Wasserman on December 6, 2022 at 10:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

J. Edgar Hoover

I would highly recommend Beverly Gage's new biography of Hoover. People from many legal disciplines will find this book useful given the FBI Director's broad reach and skill at institution building. There is also great stuff in the book on a host of specific issues. For example, I was unaware that there was a detention of some German-Americans during World War I that was a forerunner of what was done to Japanese-Americans in World War II (and explains why Hoover opposed Japanese-American internment). 

Posted by Gerard Magliocca on December 6, 2022 at 09:25 AM | Permalink | Comments (0)

Monday, December 05, 2022

Copyright and Compelled Speech

In listening to the argument this morning, I thought about the following test that the Court could use. There seemed to be agreement that "artists" cannot be compelled by anti-discrimination laws to produce their art against their deeply held beliefs. But how do you know whether someone is an artist as opposed to an ordinary business, which can be so regulated?

Why isn't the answer "if their work can be copyrighted?" This standard would distinguish, for example, a baker from a photographer. You can't copyright a cake--food is functional. You can, of course, copyright photos.

This line-drawing isn't perfect. I tend to think of a baker as being more artistic than a website designer. But the point is that we should not make these judgments based on our aesthetic views. Copyright provides an objective and well-settled line for these assessments.

Posted by Gerard Magliocca on December 5, 2022 at 03:17 PM | Permalink | Comments (0)

Oral assessments (if not exams) (Updated)

Responding to Gerard's post: In Fed Courts and Civil Rights, a chunk of the grade (about 30/165 points) is based on oral arguments. I usually have 20-30 students in each. The class gathers for a full day at the end of exams. Each student argues one case and judges one case. A petitioner and respondent argue the case before a panel of 3 students and me. It is a lot of fun and the students enjoy it. And it allows me to test them in real-time--to push back and/or correct their understandings and arguments and thus to measure how well they get stuff.

I have not been able to pull the trigger--which I think is what Gerard is suggesting--on making it the sole big assessment. That comes from a written opinion on a third case (as well as two smaller in-semester papers). I am not sure our internal academic policies on the curve and blind grading allow it. But it is an interesting thought would make my life easier. And that other people, such as Gerard, would consider it suggests it is worth thinking more about.

PS: A colleague described doing oral exams years ago at another school, in Fed Courts. He met with each student and had a conversation about some subjects or issues. Sometimes, to ease student discomfort, he took it outside--they walked around campus talking about federalism.

Update: One more thing, perhaps against the idea. In litigation, the balance between oral and written has shifted overwhelmingly towards the latter--fewer appeals get oral argument, fewer trial motions get oral argument, district judges spend less time on the bench. So do we do a disservice by emphasizing oral over written in getting them ready to practice?

Posted by Howard Wasserman on December 5, 2022 at 01:33 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Oral Exams

There was an essay in the NY Times yesterday about the virtues of oral exams for undergraduate or graduate students. I've always wondered about trying this out in a small, upper-level course. My smallest class had 5 students (in Admiralty) and they were a terrific group who would have aced an oral exam. But it was a night class and I didn't want to impose on them by scheduling another in-person evening session. The next time that I teach Admiralty, though, maybe this would work out. 

I'd be curious to know if any law faculty use oral exams and, if so, how you do that. Thanks.

Posted by Gerard Magliocca on December 5, 2022 at 09:18 AM | Permalink | Comments (0)

Thursday, December 01, 2022

Did the Court Have Jurisdiction in Dobbs?

In deciding Dobbs v. Jackson Women’s Health, the Supreme Court issued a momentous constitutional ruling while suggesting that it lacked jurisdiction to do so. In particular, the Dobbs majority appears to state that the abortion providers who brought the case lacked standing to assert their patients’ abortion rights. 

Continue reading "Did the Court Have Jurisdiction in Dobbs?"

Posted by Richard M. Re on December 1, 2022 at 07:08 PM | Permalink | Comments (12)

Uvalde lawsuit

Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.

As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.

As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.

Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.

Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.

I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.

Posted by Howard Wasserman on December 1, 2022 at 10:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, November 30, 2022

Where is the Comparativism in Criticisms (or Defenses) of Originalism?

The New York Times this past weekend ran an interesting story about the status of foreign judges who sit on the high courts of other nations, noting that it is "a curious phenomenon among Pacific island nations" but also occurs elsewhere, including "Hong Kong, the Caribbean, Africa and small European nations." Canadians, and I am still one, may be familiar with this phenomenon because of controversy over the role of its former Chief Justice, Beverley McLachlin, who insisted on staying on as a high court judge in Hong Kong despite the resignation of a couple other foreign judges, arguing that that court is still independent of interference from the Chinese government. And I recently heard an interesting talk about the personnel of the U.S. Virgin Islands courts, who often come from neighboring islands and specifically from Puerto Rico. But for the most part I cannot say I had heard or thought much about the phenomenon of "foreign judges on constitutional courts." 

The general subject is surely interesting, as is the article's focus on those judges' unsteady status given the domestic politics of those nations. But what struck me the most was this passage, relying on an interview with Dr. Anna Dziedzic of Melbourne Law School:

Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.

Obviously this is interesting in any number of ways, not least because it offers a justification for originalism as a method of constitutional interpretation that is consistent with one or two main strands of justification for originalism: that it is less socially disruptive, and in particular--appearing here in a particularly salient context--that it leaves potentially socially disruptive changes to political rather than judicial actors. And it is interesting because that justification is pragmatic and institutional rather than relying on a theory of authority or of what is necessary for proper textual interpretation.

But what is most interesting about it is that, like any constitutional law professor, I have read the usual leading or popular criticisms (and defenses) of originalism--and I had no idea, or none that I can recall, that this phenomenon existed. Of course I was aware that Australia has been the site of interesting uses of and debates over originalism, and I am aware that, particularly compared to its first two decades and despite being pooh-poohed by much of the academic and judicial establishment, originalism has become more of a live topic in Canada. (Americans are still accustomed to treating Canada as an originalism-free zone and occasionally pointing to it for that purpose. I think that view is oversimplified, outdated--it certainly used to be quite true--and too inclined to accept the complacent statements of that country's establishment as fact.) But that was the extent of my live knowledge.

In making such an admission, one risks making the fatal error of winning David Lodge's game of "Humiliation." (As the Guardian summarizes it, in his classic academic satire Small World Lodge imagines a game in which academics compete by confessing "embarrassing gaps in their reading. One of the characters in the novel, in his determination to succeed, becomes so obsessed with winning that he admits to never having read Hamlet--as a result of which, he is promptly fired.") Perhaps, in admitting that I hadn't seen much about this in discussions of originalism, I'm neglecting articles or books that no one should admit not having read (or, in fairness, having read and then forgotten). Surely I have, in any event, missed a few exceptions. And one also risks admitting what I think is true: that many American constitutional law scholars, present company included, don't spend anywhere near as much time as they should looking at comparative constitutional law. Of course will find some and perhaps many discussions there, and in doing some follow-up browsing after reading the Times article, I certainly found some relevant treatments, by, among others, Yvonne Tew, Sujit Choudhry, David Fontana, Katharine Young, Ozan Varol, Kim Lane Scheppele, and Lael Weis. All that said, and keeping in mind that originalism and originalist theory are things I read about in the course of general reading in my field rather than focusing my own research on those topics, I think I can say with confidence that as a general reader of this sort, I would remember it if the topic came up with any real frequency.

I wanted to test my intuition, so I did a very rough Westlaw search. I started with articles written by some of the most publicly prominent critics of originalism--not necessarily the best or deepest critics, but some of the critics who are most likely to get lumped into standard "For leading criticisms of originalism, see, e.g.," footnotes, and to write books or op-eds designed to influence general professional-managerial class assumptions about the topic. My focus was on domestic constitutional law scholars who meet that definition; I did not include comparativists. And I looked within that set for 1) relevant references to any of the countries that have been cited as using originalism of some form, including Malaysia, Singapore, Turkey, India, Australia, and Canada, or 2) relevant references to the authors I have noted above. I should note that there are debates about whether what some or all of those countries are doing (or debating: there are now a few Canadian judges who would describe themselves as originalist, but it's still far more a matter of minority academic argument than of judicial practice) can really be called American-style "originalism." That's fine. I would have accepted some acknowledgment of those debates as relevant.

As I say, it's a very rough search. I'm sure it could be done better. It certainly is not fine enough to reveal all the exceptions. But it does a reasonable job of showing the general norm, at least for this set of authors. And I did a couple of follow-on searches, expanding the list of authors and of sources the authors might refer to, including, at the bluntest level, a reference to a standard casebook like Tushnet and Jackson's comparative constitutional law book. 

You will not be surprised, given the windup, to hear that relevant references almost never came up. There were two real exceptions. Jack Balkin, having been pushed on this point by two comparativists--you can't get more of a pushback than an article (by Kim Lane Scheppele) titled "Jack Balkin is an American," even if I am not convinced by that article's assertion of just how nonexistent originalism is elsewhere--gives genuine discussion of the topic in more than one article, including his initial response to those pieces. And while I am, again, inclined to think he overstates the rejection of originalism elsewhere, Jamal Greene has given serious consideration to the topic of judges in other nations using some form of originalism. (David Fontana's useful piece "Comparative Originalism" is a response to one such article from around 2010, and my sense from an outside perspective is that it successfully encouraged Greene to go further in treating the topic in subsequent pieces.) Greene is certainly a prominent scholar and critic of originalism and Balkin is certainly a prominent scholar and something of the topic as well.  

And that's just about it. An occasional glancing reference to Canada or Australia at most; usually not even that and, in the case of a couple of the most publicly prominent academic critics of originalism, critics who also retail their criticisms in the popular press, absolutely nothing. On their map, "the United States" might as well be retitled "The Known World" and the rest nothing but blank space. Once you start not seeing references in these writers' work to comparative constitutional methodology (including, in at least the countries mentioned above, originalism or debates about originalism), you start not seeing it everywhere.

This would not be so surprising coming from con law scholars making glancing references to originalism. One doesn't expect every piece of domestic legal scholarship to look at how other nations do things. (That is, one isn't accustomed to expecting it. Maybe the low expectation is the problem. Does it really make sense to write regularly about, say, an area of private law without discussing the jurisprudence in that area of other common-law countries?) And as I've said, I do comparative work all too seldom. But in the areas I write about most often, I at least read and sometimes discuss what is done in other countries. How could one not do so? So I do find it surprising that if one is writing a major article, let alone an entire book, focusing on and criticizing a particular method of constitutional interpretation, there would be no reference at all to countries whose experience might confirm, confound, or complicate one's criticisms. If all you focus on is a method, surely you should be interested in the absence or, as we have seen, presence of that method elsewhere. I don't expect everyone to be aware of the experience foreign judges interpreting the constitution of their host country; I wasn't. But since, as it turns out, there are scholarly treatments of the practice, and more broadly of originalism abroad, I ought to expect those who focus closely on the topic of originalism to know that and include it in their discussions. 

The same thing can be said of advocates of originalism, and the same results apply. A similar Westlaw search conducted with prominent academic/public defenders of originalism substituted for the names of its prominent critics revealed virtually nothing of relevance. Again, there were exceptions, most prominently William Baude. For the most part, however, the cupboard was bare of any revealed knowledge of or interest in full-on or trace practices of originalism in other nations' courts.

One can offer all this simply to point out an interesting point in an interesting news article, or, in a friendly way, as notice to these scholars of a missed opportunity. Or one could offer it to point out the unfortunate frequency with which scholars of domestic constitutional law fail to look to comparative materials. Comparative constitutionalists already know this, of course, but it never hurts to remind the rest of us.

I am inclined to say two more things. Two fairly standard criticisms of originalism, which thus are relevant for both the critics of originalism and its defenders, are that it is impossible and exceptional: it can't be done, and the idea that it can and must be done is uniquely, oddly, unfortunately American. Again I quote the passage from the Times: "Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said." I do not say that these judges succeed, either in getting to any accurate sense of original intent or in channeling social change to the political branches rather than the judiciary. But it is striking nonetheless that they choose this method and for these reasons. Depending on how much they actually succeed, surely this is relevant to the question of impossibility.

On the second point, it does seem true to me that the United States, and American constitutional law, among other aspects of American life, often involves a sense of exceptionalism and parochialism. It's a sense that tends to be shared by both champions and critics of the United States or particular legal or constitutional policies, since both are animated by a sense that this country has a unique and perhaps providential greatness--or is failing to live up to a unique and perhaps providential greatness, or is living up to a unique quality of sin and evil. (In this country, the Puritan past is never dead; it's not even past.) But writing about originalism as if it is an utterly American sin (or virtue), while betraying no interest in whether the practice has occurred or continues to occur elsewhere and despite the presence of relevant information about that very topic, not only makes any such criticism (or defense) less than definitive. Surely it is also a perfect example of American exceptionalism and parochialism.  

 

 

Posted by Paul Horwitz on November 30, 2022 at 11:02 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, November 29, 2022

A Podcast on "Are the Federal Rules of Evidence Unconstitutional?"

I had a great time being interviewed on Excited Utterance about my recent paper, "Are the Federal Rules of Evidence Unconstitutional?"

My conversation with the terrific host Alex Nunn is available here.

 

Posted by Ethan Leib on November 29, 2022 at 10:05 PM | Permalink | Comments (0)