Friday, May 19, 2023

Moreland on Liberalism and Christianity

Michael Moreland (Villanova) has posted on SSRN a new paper, "Contingency and Contestation in Liberalism and Christianity) which discusses (among other things) the presentations at a conference last fall at Notre Dame Law School on Liberalism and Christianity.  Prawfs participating included Amy Sepinwell, Andy Koppelman, Brandon Paradise, Kathleen Brady, Steven Smith, and Nathan Chapman.  Also discussed are recent works by Adrian Vermeule and Patrick Deneen.  Here's Michael's abstract:

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliatory to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; (4) the renewed interest in the relationship between liberalism and Christianity in light of a new generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question—posed forcefully at the end of Steven Smith’s paper—of if not liberalism, then what else?

Michael does, I think, a great job of capturing the richness of the conversation.  [I presented at the symposium, but didn't (mea culpa!) produce a law-review article.  Here is a short version of my presentation, "Why Liberalism and Constitutionalism Need Christianity."]

Posted by Rick Garnett on May 19, 2023 at 09:18 AM in Religion, Rick Garnett | Permalink | Comments (0)

"Exploring Law Through a Christian Lens" at the Legal Vocation Fellowship

Lawprawf John Inazu (WUSTL) has a Substack.  (Recommended!)  His latest entry describes a 4-day event, part of a year-plus program that he's designed (and in which I participate), called the Legal Vocation Fellowship.  Here's a bit from John's report:

This past week, I hosted a three-day conference for the Legal Vocation Fellowship (LVF), a fifteen-month cohort experience for early career Christian attorneys. During our time together, we explored how Christians might think about the practice of law as a vocation with discussion-based lectures from five law professors: Rick Garnett (Notre Dame), Ruth Okediji (Harvard), Lisa Schiltz (St. Thomas), David Skeel (Penn), and me. We covered a wide range of readings, including selections from Augustine, Aquinas, Luther, Calvin, Kuyper, and MacIntyre, as well as some biblical texts.

On Thursday evening, LVF held a public dialogue titled “Redeeming Law” at Washington University School of Law. The dialogue explored connections between Christianity and the law and featured Professors Okediji, Schiltz, and Skeel, moderated by Professor Garnett.

Read John's account.  It was a really affirming and rewarding experience. Among other things, I got to re-read, and talk to smart young lawyers about, After Virtue!  And -- I cannot resist -- here's a shot of the five faculty participants:


Posted by Rick Garnett on May 19, 2023 at 08:52 AM in Religion, Rick Garnett | Permalink | Comments (0)

Thursday, May 18, 2023

Kagan on Velazquez and Bacon (and Lain on Cortada)

 Justice Kagan devotes the final ten pages of her Andy Warhol Foundation v. Goldsmith dissent (begin at p. 25) to illustrating the "dramatic" effects of the majority's (narrow?) approach to the first fair use factor. Using examples in literature, music, and art, she discusses historic examples of work building on prior work; her premise is that that the majority's approach would not see the later work as transformative and thus as fair use, because both create something to be sold.

On pp. 32-34, she compares Velazquez's portrait of Pope Innocent X with Bacon's "Study After Velazque's Portrait of Pope Innocent X" (commonly known as "Screaming Pope").

Miami artist Xavier Cortada's May It Please the Court depicts ten SCOTUS cases originating in Florida; the paintings hang on the walls of FIU College of Law. Here is the piece for Proffitt v. Florida, which riffed on Bacon's painting:

CortadaproffittIn Painting Constitutional Law (edited with my colleague Matthew Mirow), Corinna Lain (Richmond) wrote a wonderful essay on Proffitt and how Bacon's painting and Cortada's painting explore "pain, imprisonment, isolation and obfuscation," which constitute "larger themes of the death penalty as well."

If Kagan is right that Bacon's painting cannot happen, then neither can this.



Posted by Howard Wasserman on May 18, 2023 at 01:57 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

More on FIRE

I hope I am premature in my anticipatory criticism of FIRE; time will tell. I follow FIRE's statements pretty closely and will update (and eat crow) if it says anything. But two further points:

1) FIRE recently changed its name from Foundation for Individual Rights in Education to "Foundation for Individual Rights and Expression." This does not strike me as mission creep; this represents an intentional branching and rebranding beyond the educational context. As I understand it, FIRE and its supporters believe the ACLU has wavered in its commitment to free expression in the face of contrary commitments to equality and The Trump Resistance; they see themselves filling the gap in protecting free speech throughout society. So this is, in fact, something on which they might weigh in.

2) FIRE's Twitter thread on the Chappelle story reveals not-happiness with the comedy club's choice--dropping everyone's favorite word and wondering whether the club would have "canceled Prince because Tipper Gore and the PMRC didn’t like ‘Darling Nikki’." That is, the thread takes the club to task for "canceling" a speaker in deference to lefty critics, where it would not have done the same to conservative critics of a lefty icon such as Prince. (The answer is probably not. But private actors get to make such choices and distinctions in the name of their expressive preferences).

But if it is wrong as a matter of a "culture of free speech" (their words) to reject Chappelle but include Prince--as FIRE clearly believes--it is wrong to criticize the club for rejecting Chappelle while ignoring the Dodgers rejecting Sisters of Perpetual Indulgence. FIRE might argue that a comedy club, as an "artistic and culture venue[]," carries a unique mission. That seems a thin reed, putting aside that sports teams and stadiums should qualify as "culture venues" that draw a lot more people than comedy clubs.

Posted by Howard Wasserman on May 18, 2023 at 01:32 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sotomayor and Kagan

I do not know enough copyright law to comment on Andy Warhol Foundation v. Goldsmith (I hope one of my colleagues will write something on it). But what is happening between Sotomayor (for a 7-person majority) and Kagan (dissenting with Roberts)? Their exchanges seem uniquely sharp and direct and personal (each accusing the other of being, essentially, clueless about the law), especially for a non-political case between two justices who tend to agree on things.

The majority refers to "the dissent" more than 40 times and responds to points in 11 footnotes.

Kagan ends the intro to her dissent with the following footnote:

One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of come-back footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what  follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

I also wonder how much Roberts influenced the dissent's style. The opinion is loaded with references and allusions, a common feature of Roberts' writing (even more so than Kagan). The two together cannot help themselves. Unsurprisingly, the dissent is a fun read (again, I pass no judgment on the correctness of its analysis).

Posted by Howard Wasserman on May 18, 2023 at 01:03 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

A Trifle Premature

I may be missing something, but it seems to me that Howard has not only fired a load of buckshot in his post below rather than aiming or firing with any precision, he has also engaged in a sort of premature expostulation.

When I read the words “according to FIRE,” I tend to assume what follows will be supporting evidence, especially if I see hyperlinks looming just ahead. And when I see something referred to as a “test,” I tend to assume the test-taker is at least registered for the class. Of course FIRE has spoken and acted on the subjects of campus heckler’s vetoes and disinvitations of campus speakers. Both are university speech issues. I have no idea what the organization thinks about comedy club disinvitations, and the story Howard links to doesn’t tell me—perhaps because until very recently, FIRE’s mission was limited to questions of university speech, and so far as I know it hasn’t been vocal on the question of comedy clubs.

Perhaps unwisely—money and mission creep are both dangerous things for organizations that have acted usefully within a more limited scope— the organization recently announced that it would be expanding into free speech issues more generally. No doubt in the fullness of time FAIR will be confronted with various “tests” of consistency. Perhaps it would be fairer to wait until then before trying to figure out the nature of that test. Like all debates, culture-war debates are of dubious value generally, but certainly become more dubious the more untethered they are from specifics. 

(As a side issue, there is no inconsistency between the Religious Test Clause, or the First Amendment as such, and the belief that faith in God is at the heart of American values. Those who drafted and ratified the Constitution and the First Amendment would no doubt be surprised by many things, but certainly not by that. I’m not sure how much we should care what they thought, or what they would think about a United States senator pronouncing on local issues of this sort, but they certainly would not have found the assertion that religious faith is a central part of American values to be “news” or to be inconsistent with prevalent notions of constitutionalism. They would have been more surprised by a contrary assertion. Even setting the anachronism aside, I think they would have been much more surprised and bemused by Senator Rubio’s assertion that something as trivial as baseball is “tied to our nation’s values.”)

Posted by Paul Horwitz on May 18, 2023 at 10:59 AM in Paul Horwitz | Permalink | Comments (0)

Some kind of culture

So: A large organization plans to host and honor a particular group. People, including political leaders, object to the honoree's expression and call for the large organization to disinvite the honoree because they object to, and find offensive, that expression. The large organization disinvites the honoree.

According to FIRE and others, this is bad--cancel culture and hecklers' vetoes and woke-mob-hive-mind silencing, oh my. They deem it bad when a Minneapolis comedy club canceled Dave Chappelle shows. They deem it bad when students shout down campus speakers. They deem it bad when colleges disinvite commencement speakers.

The Dodgers announced they had removed the Sisters of Perpetual Indulgence from its Pride Night event, scheduled for June. The group describes itself as a "'performance, charity, and protest group that features drag as well as queer and trans nuns that “promote human rights, respect for diversity, and spiritual enlightenment.'” Marco Rubio,* Fox News, and the Catholic News Agency describe it as "an anti-Catholic hate group which exists to desecrate and degrade the Catholic faith" furthers "modern, secular, and indeed anti-religious 'values.'" (Note the scare quotes).

[*] Who insists faith in God is at the "heart" of our Nation's values, which might be news to those who drafted the constitutional provision excluding religion as a qualification for public office, to say nothing of the First Amendment.

Of course, the protesters in those other, censorious "cancellations" directed similar criticisms towards the targeted speakers--Dave Chappelle or Ann Coulter degrade the humanity of LGBTQ+ people. Yet Rubio, Fox, and their fellow travelers scream about wokeism gone wild destroying free expression when anyone seeks to exclude them from any space.

I do not expect consistency from Fox News or Marco Rubio; their reactions provide further evidence that their support for free speech ends where their agreement with the speaker ends. FIRE, on the other hand, purports to support free speech as a principle and touts its willingness to protect speech (and criticize supposed censors) from both sides. It often gets lumped in with conservative free-speech opportunists, which is mostly unfair.  While I believe FIRE sees too much equivalency left-wing law students' obnoxious and disruptive noise and right-wing government's legal speech restrictions, it genuinely treats similar speech restrictions by both sides in a similar way.

This becomes something of a test. If a comedy club disinviting Dave Chappelle because of his (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents, then the Dodgers disinviting the Sisters because of their (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents.

Posted by Howard Wasserman on May 18, 2023 at 09:56 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 16, 2023

Preclusion in the news (Update)

In his CNN-sponsored political rally, held the day after a jury found him liable to E. Jean Carroll for sexual abuse and defamation, Donald Trump  called Carroll a "whack job" and her allegations a "fake story." Carroll is contemplating bringing new claims for defamation.

Any lawsuit will continue Trump's trend of introducing the public to otherwise-obscure legal concepts--this time, issue preclusion. Trump in the new litigation will be bound by the jury's necessary conclusion that he did sexually abuse Carroll in that dressing room; the parties must litigate the remainder of the case (were his denials opinion, is "whack job" opinion, what are her new damages) in light of that established fact. But all the elements are satisfied--the jury found that he abused her, the finding was necessary to the verdict, Trump had a full-and-fair opportunity to litigate, and we actually have mutuality.

It plays an unusual role here. Kyle Rittenhouse has made noise about bringing defamation actions against those who continue to call him a murderer. Those claims fail for several reasons, including that these speakers are not bound by the jury's conclusion that Rittenhouse acted in self-defense and can speak contrary to that. Trump--as a party to the case--loses that luxury.

Update: Ken White on Serious Trouble discusses a different wrinkle (while calling the entire thing a law school exam)--whether Carroll can sue CNN for airing Trump's comments and whether she can establish actual malice based on the jury verdict. Again, issue preclusion does not apply to CNN--as a non-party to the original suit, it never had a full-and-fair opportunity to litigate and cannot be bound by the prior decision. But it presents an interesting fact question (White believes sufficient to survive 12(b)(6) and probably summary judgment) of how much pause a verdict holding a fact to be true must give a future speaker. And that question perhaps interacts with the standard of persuasion underlying that verdict--whether CNN is less reckless in disagreeing with a verdict finding it more likely than not Trump assaulted her as opposed to a verdict finding beyond a reasonable doubt that Trump assaulted her.

Posted by Howard Wasserman on May 16, 2023 at 03:44 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

SCOTUS Needs Recusal Reforms (and more)

My new column at The Hill addresses the Supreme Court's inadequate recusal practice (among other ethics issues), including a set of cases in which Justice Sotomayor failed to recuse herself when she should have.

The essay also discusses other problems, but here is the gist of the recusal issue:

The Supreme Court's recusal process is its next ethical conundrum


As journalists continue to dig into the justices financial reports and other documents, questions continue to arise about their recusal and disclosure practices.

Some of the issues are more serious than others. It was recently reported, for example, that Justice Sonia Sotomayor failed to recuse herself in multiple cases involving her publisher, Penguin Random House, despite having received over $3 million from the company via an advance and subsequent royalties. 

Sotomayor's participation in the Penguin Random House cases -- in 2013, 2019 and 2020 --  is emblematic of the court's unacceptable approach to recusal. Although Sotomayor had no direct financial interest in the outcome of the cases, it should have been obvious that her continuing receipt of royalties from one party could create an appearance of favoritism. The federal recusal statute requires disqualification whenever a justice's impartiality might reasonably be questioned, which was surely applicable to a justice who anticipated substantial future income from a party to a case. 

Nonetheless, Sotomayor's decision to participate in the Penguin Random House cases was hers alone, in keeping with the courts historic practice, with no review by the other justices.

The inadequacy of the court's practice is highlighted by the recusal in the same cases by then-Justice Stephen Breyer, who also received royalties from Penguin Random House. The two recusal decisions are contradictory. Receipt of royalties either does or doesn't create a reasonable question of impartiality, which should not differ according to the inclinations of individual justices. Without review by the full court, there is no way to resolve such inconsistencies, much less provide guidance to lower court judges who are governed by the same statute. 

You can read the entire essay at The Hill.

Some readers may have seen Stephen Carter's recent column at Bloomberg in which he calls the Sotomayor recusal issue “farcical.” All I can say is that he must be reading a different statute than 28 U.S. Code § 455.

Comments are open (will be monitored).

Posted by Steve Lubet on May 16, 2023 at 12:18 PM | Permalink | Comments (0)

Hiring Announcement - Wisconsin - Fall 2023 Start

The University of Wisconsin is looking for a full-time faculty member, to start Fall 2023, to teach criminal law and criminal procedure. More information, including how to apply, here:

(As a side comment, I generally do not post permanent faculty hiring announcements; I ask that people put them in the comments of the hiring committees post. However, the hiring committees post for last year is sufficiently old that I assume nobody is looking at it for information; the new hiring committees post won't be up for a little while; and it is May 2023, and this listing is for Fall 2023, which perhaps represents something interesting about decentralization in the hiring market.)

Posted by Sarah Lawsky on May 16, 2023 at 08:42 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Dr. Glaucomflecken on Private Equity


Posted by Steve Lubet on May 16, 2023 at 04:24 AM | Permalink | Comments (0)

Monday, May 15, 2023

Lawsky Entry Level Hiring Report 2023

Following is a data summary of Reported Entry-Level Law School Hiring as of Spring 2023. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. The data analysis also includes several hires who requested not to be included in the spreadsheet as of the date of this posting.

Continue reading "Lawsky Entry Level Hiring Report 2023"

Posted by Sarah Lawsky on May 15, 2023 at 11:44 AM in Entry Level Hiring Report | Permalink | Comments (0)

Does PrawfsBlawg do ok on this?

I am a couple weeks late on this, but grading.

Eric Segall offers thoughts on how law schools can push back against political polarization, generating further comments from Ilya Somin.

I want to focus on the fifth of Segall's proposals:

5) The leading legal blogs, including this one (speaking to you Mike) should reach out to folks on the other side and invite them to write posts with different perspectives than the blog usually offers. Years ago, I presented this idea in person to Eugene Volokh and Jack Balkin, who both run highly visible and successful blogs. They rejected the idea out-of-hand saying that legal bloggers do this now simply by responding to experts on other blogs. But that response missed the point of my idea. It is the sharing of space, both physical and virtual, among folks with different views that is important because being in the other side's house reduces both extremism and dogmatism.

Is it pollyanna-ish of me to think that we have achieved something like that, albeit unintentionally and without trying. I think our group is genuinely--at least within the parameters of the legal academy but perhaps more broadly--runs the political spectrum. That includes those avoid political topics, those who match different "sides" on different issues, and those who think both "sides" are wrong on some things.

To that end, we as a group are exploring ways to continue and expand the breadth of the conversation on this blog and the featured non-heterogeneous voices.

Posted by Howard Wasserman on May 15, 2023 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, May 14, 2023

A Reply to Steve: Lost and Found in Translation

I admit that when I read the title of Steve's post below, I assumed it would be about other aspects of the rhetoric in Michael McConnell's op-ed about the constitutional aspects of the debt limit debate. In an environment in which our rhetoric is permanently at risk of inflation, such that I believe there is value in putting even (what one thinks are) true statements and strong judgments in deliberately calm and moderated tones, I would have preferred that McConnell avoid a phrase like "dangerous nonsense"--even if he thinks the argument is dangerous nonsense. I say so with some reservation, since I admire the bluntness with which writers like Noel Annan delivered their judgments, with confidence and without any pretense that they were doing something other than delivering their judgments. And I too enjoy the occasional sharply delivered judgment. On the other hand, I don't think the language served a useful persuasive purpose in this particular forum, in which heated rhetoric is likely to succeed only when its purpose is to preach to the already-faithful; I think our rhetorical environment is already so polluted with sharp language that there is an overall net value in moderating it; and I frankly do not trust Americans (Annan was English) with dangerous weapons, including sharp language. That includes educated Americans. (Possible case in point: the headline writer who repeated that language. I am assuming only for these purposes that that person would count as an educated American.)  

One thing I feel fairly confident about, though, is that what Steve is actually interested in--the use of the phrase "That is not a bad thing. It is a good thing"--is not either an accidental or an ironic quotation of Chairman Mao. The general locution simply conveys a common-sense idea or argument: that, contrary to one's first impression, some purported bad thing is actually a good thing. The locution itself is English because we are dealing with a particular English translation of the original Mandarin text. I don't doubt that one could find similar phrasing in the literature and daily speech of any language. But it is never surprising to find that a translation uses phrasing familiar or sensible to the speakers of that language. (As a somewhat roundabout example, one of the quotations in chapter 5 of the Little Red Book says, with quotation marks, "War is the continuation of politics." One has to assume Mao was quoting von Clausewitz. I don't know whether, in the original Mandarin, Mao was quoting von Clausewitz in the original German or using the common English translation of that famous phrase. But whatever the case, it can't be surprising that a translator would have used what had become a common English-language version of the phrase--or that an English-language translator would use a fairly banal pairing like "bad thing" and "good thing.") It is not surprising that a phrase like this appears in either Mao or McConnell because it is not surprising that any English language speaker would use a matched pairing like this. 

If I am wrong, then the Maoist or Maoist-ironist conspiracy runs far deeper. Fifteen cases in the "all cases" database on Westlaw use similar language; in many of those cases, the language came not as part of a considered writing process but in oral statements offered in passing in court by judges, attorneys, and laypeople. (For instance, the defendant in one criminal case, who said in court about his offer to turn his children over to the state, "It's not a bad thing. It's a good thing." Or the physician who testified in an insurance dispute, "If you've got a limb that's partially paralyzed, exercise is not a bad thing for it. It's a good thing for it.") Using a conservative (if I may) estimate, close variants of the same phrase have appeared over 50 times in the law review database on Westlaw. While it is pleasant to entertain the suspicion that the legal academy really is filled with Maoists, Occam's Razor suggests that this is just a phrase that oft was thought and also oft expressed. (In fairness, Jack Balkin was one of the writers who used this locution. Still, that doesn't account for the other 49 or so times.) I am confident that the writer who, when speaking about expert evidence, said that "looking directly at the science seems a good thing, not a bad thing" was simply using readily available language, not sending a signal to the revolutionary cadre. As for irony: speaking as a Canadian, I must say that the good-money bet is always against any American speaking ironically, let alone that many Americans and still more that many American academics. It's a sadly uncultivated, sorely missing skill in these parts. That was true even back when a young Jed Purdy was, wrongly, arguing against it. 

Finally, I might note that a Google Ngram search suggests that the phrase or close variants of it have been used by English speakers long before 1939 and on any number of occasions since. I am reasonably confident that neither the writer in Youth's Companion magazine in 1900 ("The desire to excel is not a bad thing but a good thing"), nor Liberal Chancellor of the Exchequer and later Prime Minister William Ewart Gladstone speaking on the hustings in 1865 ("And that was not a bad thing, but a good thing for the constitution"), nor Matthew Arnold, nor the commenter in the Illustrated London News in 1918, were Maoist belle-letrists avant la Maoist belle-lettre. 

In this instance, I believe, the cigar is just a cigar. 

Like Steve, I take no position on the merits. Although, having pronounced on McConnell's language, I cannot resist pointing out that it doesn't hold a candle to the vitriol of the commenters on his op-ed, and that McConnell's op-ed seems to contain far less irony, or whatever it should be called, than Laurence Tribe's op-ed of a week ago. 

Posted by Paul Horwitz on May 14, 2023 at 03:14 PM in Paul Horwitz | Permalink | Comments (0)

Michael McConnell on the Debt Ceiling: a Question about Rhetoric

Michael McConnell, former federal appeals judge and current Stanford law prof, has a column in the New York Times calling on Pres. Biden to abandon his demand for a clean bill to increase the debt ceiling, and rather to negotiate spending cuts with House Republicans. My own view is that Speaker McCarthy and his colleagues are recklessly endangering the U.S. and world economies -- they only care about the debt ceiling, or deficits for that matter, when there is a Democrat in the White House -- but McConnell sees it differently:

But the House Republicans’ insistence on negotiations and compromise is not “hostage taking.” It is the ordinary stuff of politics. The two sides can posture all they want, but in the end, Congress and the president have to reach an agreement. That is not a bad thing. It is a good thing. The Constitution does not permit a unilateral solution on either side.

I am not writing, however, to engage on the merits. What's more interesting to me is McConnell's use of certain language -- "That is not a bad thing. It is a good thing." -- which happens to be a very close paraphrase from Chairman Mao Zedong's Little Red Book:

To Be Attacked by the Enemy Is Not a Bad Thing but a Good Thing.

Mao first used the phrase at a Communist Party Congress in 1939 (I had to look it up), and he often returned to the locution in later speeches and writings. I recall its use in many contexts by various Maoists and others during my Berkeley years. Whatever was being advocated, it was invariably "not a bad thing, but a good thing."

Now I wonder how conservative Prof. McConnell came to use it. Did he just come up with the expression independently? Did he happen to pick it up from ubiquitous Stanford left-wingers, unaware of its origin? Or was he being subtly ironic, realizing that only a handful of old-timers were likely to recognize his allusion (and would smile at it, as I have)?

Comments are open (but will be monitored).

Posted by Steve Lubet on May 14, 2023 at 10:39 AM | Permalink | Comments (0)

Saturday, May 13, 2023

Saturday Music Post - Rainbows

Today's musical rainbows are on The Faculty Lounge as usual.

Posted by Steve Lubet on May 13, 2023 at 06:32 AM | Permalink | Comments (0)

Fact Checking Ethnographies (or Anything Else)

My essay on fact checking ethnographies has been posted on the American Sociological Association's Contexts Blog. It derives from some research I had left over from Interrogating Ethnography, which I came across when clearing out some post-retirement files. The piece is basically an example of how to use documentation and circumstantial evidence to evaluate questionable claims and assertions.

Here is the gist:

The author’s field site was a university cafeteria, where they obtained a job in order to observe staff and customers. After some weeks, it occurred to the author that many of the mostly African American employees could barely read. Some workers even had trouble with the timecards because their names were written in cursive, which, according to the author, a significant number of employees could not recognize.

Could there actually be such a significant number of people in the 21st century United States who could not recognize their own names?

I could not go back in time to the author’s research site, but there were other ways to evaluate the reading claim. I surveyed the cafeteria workforce at a similarly located university, to see if there was even one person who fit the author’s description. I also contacted literacy organizations and reviewed national studies to determine the prevalence, if any, of such profound reading deficits among employed adult Americans. 

The ethnography’s editors, at a leading university press, evidently made no effort to confirm the inability of the workers to read their own names. The author presented this observation as a meaningful discovery, which is not unusual in urban ethnographies that prize unexpected findings, with an incentive to interpret ordinary events in novel ways.

Upon examination, however, such claims often fall apart under scrutiny.

The essay is not paywalled. You can read it here.

Posted by Steve Lubet on May 13, 2023 at 05:35 AM | Permalink | Comments (0)

Friday, May 12, 2023

Justice Jackson on the Vesting Clause

One criticism of Justice Jackson's concurrence in Youngstown is that he misread the Vesting Clause of Article II. The opinion says that the Vesting Clause is "an allocation to the presidential office of the generic powers thereafter stated." This is wrong. The President exercises many executive powers that are not stated in Article II and do not come from a congressional delegation. Where do those powers come from? They must come from the Vesting Clause unless you accept a broad theory of "inherent" or "unwritten" executive powers.

Justice Jackson's drafts grasped this idea better than the final version. Here is how he explained the Vesting Clause there: “The obvious meaning, it seems to me, is that the Executive power appropriate to the form of Government created by the entire Constitution is what is vested in the President and that on any given issue a study of its interrelated powers and responsibilities must determine the question.”This is a much better explanation. Why, then, did he change this?

I don't know, though one possible answer is that revisions sometimes introduce--rather than correct--errors.

Posted by Gerard Magliocca on May 12, 2023 at 09:31 AM | Permalink | Comments (0)

Thursday, May 11, 2023

National Pork Producers Council v. Ross

The Court issued its opinion today and upheld the California proposition regulating pork sales. I agree with the result, although it's unfortunate that the Court could not produce a single majority opinion. This will, though, be a fun teaching case because of the many opinions that were written.

I'll add that I find it odd that Justice Kavanaugh feels the need (and he's done this before) to write a "for those of you keeping score at home" concurring opinion that attempts to spell out what the other opinions hold or say. I guess he's just trying to be helpful, but one person's view of what the others say isn't terribly persuasive.

Posted by Gerard Magliocca on May 11, 2023 at 01:10 PM | Permalink | Comments (0)


I was reading something yesterday and came across the unfamiliar word fol-de-rol (also spelled folderol). It means nonsense and was an older English version of saying "la, la, la" in songs. Since the refrain was just a filler, people used to use it to mean irrelevant or foolish. 

This is your word for the day. You're welcome.

Posted by Gerard Magliocca on May 11, 2023 at 09:28 AM | Permalink | Comments (0)

Wednesday, May 10, 2023

Alexander Hamilton on the National Debt

From a letter to the Senate from 1795. This letter was quoted by the Supreme Court in Perry v. United States:

"[W]hen a government enters into a contract with an individual, it deposes, as to the matter of the contract, its constitutional authority, and exchanges the character of legislator for that of a moral agent, with the same rights and obligations as an individual. Its promises may be justly considered as excepted out of its power to legislate, unless in aid of them. It is in theory impossible to reconcile the idea of a promise which obliges, with a power to make a law which can vary the effect of it.'

The Perry Court made the clear that the principle enunciated by Section Four of the Fourteenth Amendment predated that clause.

Posted by Gerard Magliocca on May 10, 2023 at 07:01 PM | Permalink | Comments (0)

One Possible Resolution of the Debt Ceiling Dispute

Let's assume that President Biden does invoke Section Four of the Fourteenth Amendment to ignore the debt ceiling. Litigation then ensues. In the meantime, Congress and the President can continue to negotiation. As part of that negotiation, Congress can retroactively authorize any debt issued by the Treasury in excess of the debt ceiling. This action would not concede the President's power to issue debt unilaterally. Congress adopted a similar approach to President Lincoln's unilateral suspension of habeas corpus during the Civil War. The Habeas Corpus Suspension Act of 1863 did not concede Lincoln's authority on that point but also did not reject what he had done.

A settlement along these lines (perhaps after the Supreme Court hears oral argument) would be in the interests of both sides. After all, neither Congress not the President can be confident of victory and neither side wants to lose and set a definitive precedent. 

Posted by Gerard Magliocca on May 10, 2023 at 09:27 AM | Permalink | Comments (0)

Clarence Thomas's Flimsy Excuses

My new column on Clarence Thomas’s flimsy excuses is up at

Here are the opening paragraphs (all that CNN will allow me to post). There is much more detail in the essay:

Clarence Thomas Is Running out of Excuses

May 10, 2023

Supreme Court Justice Clarence Thomas has had to explain decades of omissions on his annual financial reports. The most recent revelation, as reported by ProPublica, is that Thomas did not mention Republican donor Harlan Crow’s private school tuition payments for the justice’s grandnephew, whom the justice and his wife, Virginia Thomas, were raising “as a son.” That was a direct financial benefit to the Thomases, but it appeared nowhere on the justice’s disclosure statements mandated by the Ethics in Government Act.

The discovery is just the latest to cast a pall on Thomas for providing flimsy excuses for failing to make disclosures on these reports. As a Supreme Court justice, Thomas routinely interprets complex statutes that affect millions of Americans, priding himself on close adherence to the text. It beggars belief that he could repeatedly misinterpret plain statutory requirements and simple instructions on his annual disclosure reports.

You can read the full column at

Comments are open (subject to review).

Posted by Steve Lubet on May 10, 2023 at 08:03 AM | Permalink | Comments (1)

Tuesday, May 09, 2023

The (Tort)oise System

Through my scholarship focuses on constitutional law, I love teaching tort law and have done so for over twenty years. A fact worth pondering is that the slow and steady tort system seems to be doing far more to hold prominent firms and individuals accountable for their wrongdoing than the more glamorous alternatives of criminal and constitutional law. The Fox News/Dominion settlement is one example. The civil verdict today against Donald Trump is another. 

The relative effectiveness of tort law is just one more reason to doubt that the Supreme Court's qualified immunity cases are correct. 

Posted by Gerard Magliocca on May 9, 2023 at 05:25 PM | Permalink | Comments (0)

Monday, May 08, 2023

Law and Psychology Review Expedited Consideration: Deadline May 10

I apologize for the late posting of this notice, but for scholars who may have articles in draft dealing with the intersection of law and behavioral or psychological studies, please note the availability of direct submission and expedited review at the Law & Psychology Review, for papers submitted by the end of the day on Wednesday, May 10. The notice is below:



The Law &Psychology Review at the University of Alabama School of Law is the leading student-edited journal exploring the intersection of behavioral and legal studies. We have a rigorous editorial review and revision process designed to strengthen the style and structure of each article that we select. As a specialized journal, we bring experience and expertise when it comes to editing works with psychological and behavioral aspects.

The Law & Psychology Review is opening a special direct submission window. Submissions (in Word or pdf format)should be emailed to [email protected] Submissions received by May 10, 2023, at 5:00 pm CT will receive a publication decision by May 14, 2023, at 11:59 pm CT.

All submissions must include a psychological component and be relevant to law and/or policy. We prefer articles with more than 10,000 words (including references) and in Bluebook format.

If you have any questions, please do not hesitate to contact us at the email address above.


Posted by Paul Horwitz on May 8, 2023 at 02:52 PM in Paul Horwitz | Permalink | Comments (0)

Property Law Teacher Sought for Spring '24 at U of Alabama

I'm happy to pass along the following notice. I will add two points: 1) Our students are excellent and it is a genuine pleasure to teach them. 2) I am reliably informed that in other parts of these United States, one may experience heavy quantities of snow in the months of January through April. We mostly avoid such unpleasantness in this state. 

* * * 

The University of Alabama School of Law is seeking a visiting faculty member from an ABA-accredited law school for a podium visit in the Spring 2024 semester to teach Property (4 credit hours) in the first-year required curriculum.  There is an option to teach a second course in an elective subject of the visitor’s interest that matches with the Law School’s needs, but it is not required.  Instruction for the Spring 2024 semester will be in-person at the School of Law in Tuscaloosa, Alabama.  This visit will include housing and visiting scholar stipend in addition to covering regular compensation at the scholar’s home institution.  The University embraces diversity in its faculty, students, and staff, and we welcome expressions of interest from and nominations of individuals who would add to the diversity of our academic community. 

Interested individuals should submit a cover letter, C.V., list of at least three references, and recent course evaluations.  Materials may be submitted via email to Associate Dean for Academic Affairs Grace Lee at [email protected]

Individuals who wish to submit nominations may email them to Associate Dean for Academic Affairs Grace Lee at [email protected]

Review of materials and nominations will begin immediately and will continue until the position is filled.

Posted by Paul Horwitz on May 8, 2023 at 02:47 PM in Paul Horwitz | Permalink | Comments (0)

Backlash and the preferred first speaker

Fred Wellman's On Democracy podcast hosted Kevin Kruse (Princeton) to talk about his new book of essays, Myth America: Historians Take on the Biggest Legends and Lies About Our Past (2023). Later in the conversation, Kruse argues that we should not speak about "backlash" to social movements (race in the '60s or '70s or LGBTQ+ today). Backlash suggests a natural and inevitable force that blames the movement for the reaction--by pushing for its rights, Group A caused pushback. Rather, we must see the counter-movement as a similar, conscious, organized social movement that pursues a different, conflicting agenda. That is, the current wave of anti-LGBTQ+ legislation is not a "backlash" to those who pursued an agenda favorable to LGBTQ+ rights, something that just happened as a Newtonian reaction; it is a conscious choice by certain people to pursue an agenda unfavorable to LGBTQ+ rights. Perhaps the anti-LGBTQ+ movement only appeared because the pro movement appeared and enjoyed success; before that, they never thought or cared about LGTBTQ+ people. But that should not remove the intentionality and choice inherent in the anti-actions--they do not want LGBTQ+ people to have certain rights and they chose to pursue that agenda. Nor should it be framed as a "lesson" to the LGBTQ+ movement, showing why they should not have pushed for their rights in the first instance.

I am trying to figure out how this reframing fits within the preferred first speaker concept. I think they share a conceptualization--both "sides" in any situation share equal footing. One does not enjoy a superior right, each pursues a conscious and intentional agenda, and we should not understand one as causing the other.

Working through that.

Posted by Howard Wasserman on May 8, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 07, 2023

Laurence Tribe is (sort-of) Wrong

Professor Tribe has an op-ed in today's New York Times stating that he's changed his mind about the propriety of a president invoking Section Four  of the Fourteenth Amendment. He now says: "For a president to pick the lesser of two evils when no other option exists is the essence of constitutional leadership, not the action of a tyrant."

But this point is wrong as applied to debt ceiling. President Biden does have other lawful options besides the evils of default and Section Four. The Treasury can issue premium bonds or mint the trillion dollar coin (though I prefer the premium bonds). To be sure, smashing the debt ceiling is the simplest solution in the absence of congressional action. But that does not make that the correct legal solution. 

One can understand why the Administration is not discussing these legal alternatives. If they do, then Congress has no incentive to act. And congressional action is obviously better than the novel alternatives. At some point, though, the Treasury must explain why these are not plausible alternatives to justify an unprecedented Section Four action.

There are some interesting comparisons between this situation and Youngstown. President Truman had different statutory options to address the steel strike. But he didn't like them for various reasons, so he decided to take unilateral action instead. The Court said that the availability of these statutory options meant that his unilateral action was unlawful (though the opinions addressed this point in different ways). You can say the same here. The fact that the Treasury does not like the statutory options does not make unilateral action lawful. 

In one important respect, though, this situation is different from Youngstown. There it was certain that a proper lawsuit would challenge the seizure because the steel firms had standing to sue. Here it is unclear that anyone would have standing. To summon a theme from Justice Jackson's concurrence, maybe the advice of a presidential advisor should focus on that point. In other words, my conclusion that President Biden lacks the power to invoke Section Four is coming the point of view of a neutral observer. If I were a presidential advisor,  though, maybe I would be telling him that his chances of prevailing are pretty good and so he should go ahead to avert a financial crisis and create a precedent that defangs the debt ceiling. 

Posted by Gerard Magliocca on May 7, 2023 at 02:02 PM | Permalink | Comments (0)

Saturday, May 06, 2023

Charles Evans Hughes

About five years ago, I thought about writing a book about Charles Evans Hughes. Hughes lived an incredible professional life and was the subject of a Pulitzer Prize winning biography in the early 1950s. He is overdue for a new treatment. I passed on the idea because I did not think that I could tackle such a huge project. But I am now warming up to the idea for a couple of reasons.

First, I don't think that the 1916 presidential election gets enough attention. It's a major turning point in world history, perhaps even more than in American history. What would World War I and its aftermath have looked like with President Hughes instead of President Wilson? People don't ask this question, which is surprising given the closeness of the 1916 election.  I know little about the 1916 campaign or about Hughes's views on foreign policy before and while he Secretary of State, but that is fruitful terrain for sure.

Second, his initial stint on the Supreme Court (before he ran for President) gets far less attention than his time as Chief Justice. He is the Grover Cleveland of the Supreme Court. As an Associate Justice, Hughes was a progressive who typically sided with Holmes in significant cases. Did his outlook change over time or remain consistent? How did his experience between 1916 and 1930 shape his attitudes?

Third, Hughes had a talent for writing confusing opinions. I mean that as a compliment. Lawyers and scholars should always be clear, Judges, diplomats, and politicians, though, sometimes need to cloud the issue. (Winston Churchill liked to say that "[T]he English never draw a line without blurring it.")

There's more of course. A look at the Hughes papers is probably in my future.

Posted by Gerard Magliocca on May 6, 2023 at 03:39 PM | Permalink | Comments (0)

Shabbat Shalom

We celebrated the beginning of Shabbat last night with a pitching match-up of Dean Kremer of the Orioles (member of Team Israel) and Max Fried of the Braves (best Jewish pitcher since Ken Holtzman, if not yet Koufax). A six-inning pitchers' duel ended when Fried fell apart in in the 7th and the Orioles scored 7 runs (5 off Fried, including two homers). Kremer gave up 6 hits and struck out 3 in six innings, for his third win of the season. Fried had been untouchable in three starts since coming off the DL and continued that run for about six innings; his E.R.A. jumped from below 1.00 to 2.08.

Posted by Howard Wasserman on May 6, 2023 at 08:51 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Saturday Music Post - San Francisco Bay Blues

Jesse Fuller, the great one man band of the Bay Area, wrote and recorded San Francisco Bay Blues in the 1950s, playing 12-string guitar, harmonica, bass drum, high-hat cymbal, "fotdella," and kazoo. Peter, Paul, and Mary famously covered it in 1965, keeping only the kazoo in their live appearances (but not on the record). Fuller's "fotdella" was a six-string bass of his own devising, played with foot pedals.

The clips are posted on The Faculty Lounge.

Posted by Steve Lubet on May 6, 2023 at 05:47 AM | Permalink | Comments (0)

Thursday, May 04, 2023

The Robert Moses Theory of Law

In Robert Caro's masterpiece The Power Broker, he quotes Robert Moses as telling associates: "Once you sink that first stake, they'll never make you pull it up." This is an fine aphorism for sunk-cost thinking on any project, but also describes how courts respond to some cases.

Consider the following scenario. Assume that President Biden decides to ignore the debt ceiling. A lawsuit is filed challenging that action. Assume further that someone has standing to bring that case. What would happen on the merits?

A significant limitation on judicial power would be that a ruling against the Administration could cause a financial panic. Bonds issued after the debt ceiling was broken would be illegal and worthless. These losses would spill over into banks, pension funds, and so on. Put another way, once the first "Biden bond" is issued, they'll never make you pull it back.

This is part of what happened in 1935. The Supreme Court faced the real prospect that there would be a financial meltdown if they ruled against the Roosevelt Administration's position in the Gold Clause Cases. Devaluation was a fait accompli.

This will be my last Section Four/debt ceiling post unless something actually happens.  

Posted by Gerard Magliocca on May 4, 2023 at 06:17 PM | Permalink | Comments (0)

Debt Validity vs. Devaluation

To build on my post from yesterday, why don't people think that the debt devaluation in the 1930s was a default? Here are a couple of possible answers that aren't necessarily based on a legal fiction or a lack of remedy:

  1. The Constitution is violated only when there is a total or a substantial default. A haircut for the bondholders does not count. This was part of what the United States argued in its brief in Perry.
  2. Paying people back at face value is not a default even if the real value of the dollar has declined. This makes sense in that you cannot say that any downward movement in the dollar over the term of the bond is a partial default. There has been inflation over the term of longer (and even shorter) bonds.
  3. Justice Stone's concurring opinion argued that Congress's power to regulate the currency would be unduly impaired if Section Four or the Constitution more generally was read to prohibit or restrict devaluations.


Posted by Gerard Magliocca on May 4, 2023 at 01:28 PM | Permalink | Comments (0)

Supreme Court Justices Offer Unconvincing Dodge on Ethics

My new essay at The American Prospect, explains why former federal appeals judge Michael Luttig is right, and the SCOTUS justices’ Statement of Ethics Principles is wrong, when it comes to Congress’s power to set conduct rules for the Supreme Court.

Here is the gist:

Supreme Court Justices Offer Unconvincing Dodge on Ethics

by Steven Lubet

May 4, 2023

“There should never come a day,” Luttig added, when Congress “is obligated to enact laws prescribing the ethical standards” applicable to the Court. But Congress “indisputably has the power under the Constitution to do so,” he concluded.

In contrast, Roberts and his colleagues were all but dismissive of increasing public concerns, allowing only that they would “reaffirm and restate foundational ethics principles,” while seeking “to dispel some common misconceptions.”

Reassuringly, the justices seem to say that their recusal decisions nonetheless follow the Judicial Conference’s Code of Conduct:

A justice may provide a summary explanation of a recusal decision, e.g., ‘Justice X took no part in the consideration or decision of this position. See Code of Conduct 3C(1)(c) (financial interest)’ or ‘Justice Y took no part in the consideration or decision of this petition. See Code of Conduct, Canon 3C(1)(e ) (prior government employment).'

In fact, no such explanations have ever been given.

Moreover, just six days after issuing the Statement of Principles, and one day before the Senate hearing, the Court announced Justice Ketanji Brown Jackson’s recusal in a major case with no parenthetical explanation, much less a citation to the Code of Conduct.

Several Republican senators—including Thom Tillis (R-NC) and Charles Grassley (R-IA)—briefly suggested that they might eventually be open to some congressional oversight of the Court. If so, it will be because they have accepted Judge Luttig’s admonition that the subject of the Supreme Court’s “ethical standards of conduct … is emphatically not a partisan political issue.” As he put it, the Court has a “continuing obligation to assess itself,” and every justice has a responsibility to ensure that questions about their ethical conduct need not even be raised.

You can read the entire piece at The American Prospect.

Posted by Steve Lubet on May 4, 2023 at 06:15 AM | Permalink | Comments (0)

Wednesday, May 03, 2023

What's Going on at the Rock & Roll Hall of Fame?

The Rock & Roll Hall of Fame has announced its 2023 inductees. It is an "all-star class," as the Hollywood Reporter put it, including Kate Bush, Missy Elliott, George Michael, Sheryl Crow, Rage Against the Machine, The Spinners, and Willie Nelson.

Wait a minute. Willie Nelson? How can it be that Willie Nelson, who just turned 90, isn't already in the Hall of Fame?  Artists become eligible for induction 25 years after releasing their first record. Willie's first release was in 1956, meaning that he has been eligible ever since the Hall was founded in 1983. 

The rapper Missy Elliott will be inducted in her first year of eligibility. Meanwhile, Willie Nelson has been passed over for 40 years. I am completely unfamiliar with Elliott's work, but it is hard to imagine it could be that much better or influential than Willie Nelson's.

Now, you might say that Willie doesn't actually play rock music, although he has certainly released some rock-a-billy tunes. And in any case, previous inductees include such non-rock acts as Chet Atkins, Joan Baez, Hank Ballard, Harry Belafonte, and Bob Wills -- and that's just the first two letters of the alphabet.

Comments are open for those who wish to express their outrage or, less likely, offer a rationalization.

Posted by Steve Lubet on May 3, 2023 at 01:19 PM | Permalink | Comments (9)

American Default

This is the title of an excellent book about the devaluation of the dollar in the 1930s. The logic of the title goes something like this: When the United States went off the gold standard (at least domestically) in 1933, the value of our currency fell by one-quarter or one-third. This was a partial default on Treasury bonds, in the the sense that the bondholders were getting significantly less than promised. Nobody used the word "default" to describe what occurred, but that was the reality.

When the bondholders challenged the devaluation as unconstitutional, the Supreme Court (in a plurality opinion) said that Section Four of the Fourteenth Amendment applied. But the plurality in Perry v. United States also concluded that the bondholders were not entitled to a remedy. The result was a legal fiction. A default was unconstitutional but could go ahead anyway. In a law review article that I wrote on Perry, I drew an analogy to Marbury.

This fiction was so effective that people still say that America has never defaulted on its debts. 

UPDATE: In another post, I'll try to explain how the 1930s precedent can be harmonized with the text of Section Four. 


Posted by Gerard Magliocca on May 3, 2023 at 09:58 AM | Permalink | Comments (0)

Snap removal swallows everything

An odd, but probably not unusual, phenomenon--one weird rule affects and infects application of other, related rules and processes. Snap removal seems to act as one such rule, with parties arguing that all sorts of removal is proper so long as it happens before service on a local defendant. I wrote last summer about a district court reading snap removal to override the time-of-filing rule for jurisdiction, allowing Tesla to remove a California case when it moved its headquarters post-filing but pre-service. (I tested on the case this semester). The defendant tried a similar move in this case, arguing that snap removal was proper when the diverse defendant removed before the non-diverse local defendant was served. Fortunately, Judge Stras was having none of it; even recognizing snap removal (the 8th Circuit has never weighed in), that cannot overcome the complete diversity requirement.

Posted by Howard Wasserman on May 3, 2023 at 08:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, May 02, 2023

Sherlock Holmes and the Law

I'm a big Holmes fan and recently discovered a terrific podcast about the Jeremy Brett series that remains my favorite adaptation of the stories. So I thought I'd do some fun posts about legal points that arise in the stories. For example, Holmes often gives his opinions about what juries might do in certain situations, along with other commentary.

Here's one that's not from Holmes. In "The Norwood Builder," Holmes is consulted by a client who is (falsely) accused of murder. Inspector Lestrade arrives to arrest the suspect. Holmes asks Lestrade if the client can tell his version of events before being taken away. Lestrade says fine, but then says: "I am bound to warn him that anything he may say will appear in evidence against him."

That sounds a lot like a Miranda warning, but the story was published in 1903. In what sense was Lestrade "bound" to give this warning? Does that mean "legally obliged" or "morally obliged?" Perhaps someone who studies English criminal law history would know.


Posted by Gerard Magliocca on May 2, 2023 at 11:17 AM | Permalink | Comments (0)

Dr. Glaucomflecken on Single-Payer Health Care


Posted by Steve Lubet on May 2, 2023 at 03:17 AM | Permalink | Comments (0)

Monday, May 01, 2023

Dear Justices: A Statement of Principles Is Not a Substitute for a Code of Conduct

My new column for The Hill explains why the Supreme Court's recent "Statement of Ethics Principles and Practices" is no substitute for an actual code of conduct. It leaves many important ethics issues unaddressed, including political activity, solicitation of contributions, avoiding outside influence, ex parte communications and leaking information, public comments on pending cases and reporting misconduct, among others. 

Regarding recusal, the Statement of Principles is simply baffling:

The Statement defends the court’s long-standing practice in which “individual Justices, rather than the Court, decide recusal issues.” The justification is that any other approach “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

That is wrong for at least two reasons. First, if the majority believes that a justice should be recused, then the justice should not participate no matter how it affects the case. The alternative is to have an otherwise disqualified justice cast the deciding vote, which is obviously far worse.

Moreover, the rationale bizarrely suggests that some future majority might conspire to disqualify another justice simply to control the outcome of a case. Not only does that betray an astonishing mistrust of their successors, but it would be nonsensical for a majority to deviously disqualify a colleague when, by definition, there are already enough votes to prevail in the case.

You can read the entire essay at The Hill.

Posted by Steve Lubet on May 1, 2023 at 11:42 AM | Permalink | Comments (0)

JOTWELL: Steinman on constitutional remedies

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Brandon L. Garrett & Kaitlin Phillips, AEDPA Repeal, 107 Cornell L. Rev. 1739 (2022) and Alexander Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and Civil Rights Enforcement, 116 Nw. U. L. Rev. 737 (2021); the articles explore and criticize different limitations on constitutional remedies.

Posted by Howard Wasserman on May 1, 2023 at 11:02 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, April 30, 2023

Challenging private enforcement

Rocky and I discussed this in our SMU piece, but I have been thinking about it more of late.

B8 and other exclusive-private-enforcement (or "vigilante federalism") draw two related-but-distinct objections. They force rights-holders to litigate their rights defensively, cutting off most offensive litigation; while offensive litigation is not constitutionally required, it offers certain advantages, notably not forcing rights-holders to "act at their peril" as a condition of litigating their rights. And they force rights-holders to litigate in state court.

The second objection arises from two limits on federal jurisdiction--the Well-Pleaded Complaint Rule and Article III standing. Both prevent the defendant/rights-holder from removing a state-court action to federal court. Under the WPC, federal jurisdiction requires the federal issue to appear in the complaint; the rights-holder's federal defense does not provide a basis for federal jurisdiction and thus for removal. And laws allowing "any person" to sue cannot be in federal court even absent the WPC, because a random "any person" plaintiff likely does not have Article III standing (even if he might have standing under more forgiving state law).

Of course, both judge-made limits on federal jurisdiction suffer from significant problems. The WPC arguably undermines the purposes of federal question jurisdiction (uniformity, expertise, respect); those needs are present regardless of the procedural posture in which the federal issue arises. A defendant needs expertise for a federal defense as much as a plaintiff needs expertise for a federal claim. Standing is stupid and not really jurisdictional, as I have argued. And even if jurisdictional, Andy Hessick argues that federal courts should apply state standing rules in diversity cases. Without both stupid doctrines, the defendant could remove the vigilante-federalism action and litigate in federal court, where she has a (perhaps) fairer and less-captured forum and a shorter path to SCOTUS.

This does not address the first objection--rights-holders should not be forced into defensive litigation. But the question is what is the real objection?

Posted by Howard Wasserman on April 30, 2023 at 11:09 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, April 29, 2023

Saturday Music Post - The Last Thing on My Mind

In the early 1960s, Tom Paxton was one of the young folk musicians hanging out in Greenwich Village; a group that included Bob Dylan, Joan Baez, Phil Ochs, Janis Ian, and others. According to Dave Van Ronk, who was in a position to know, Paxton was the first of the group to perform mostly his own material, at a time when even Dylan was still singing traditional folk songs. They were sometimes called topical or "protest singers" for their songs about the civil rights and peace movements. Unlike Dylan, Paxton actually went south to register voters in the Mississippi Summer. (Dylan performed at the March on Washington, but he was not otherwise a movement activist). It's hard to recall the time when Tom Paxton was mentioned along with Bob Dylan. Nobody would ever suggest Paxton for a Nobel Prize, but he did write some beautiful songs, including "Bottle of Wine," "Ramblin' Boy," and "The Marvelous Toy," which were recorded by Pete Seeger, Joan Baez, the Chad Mitchell Trio (for which Paxton unsuccessfully auditioned), Harry Belafonte, Willie Nelson, Glen Campbell, and Peter, Paul, and Mary, among many others.

 Paxton wrote and recorded "The Last Thing on My Mind" in 1964. I saw Paxton perform live several times, but my tastes were so parochial back then, I am embarrassed to admit, that I was unaware of the uptempo cover by Dolly Parton and Porter Wagoner, which was their first big hit in 1967.

The clips are on The Faculty Lounge here.

Posted by Steve Lubet on April 29, 2023 at 06:47 AM | Permalink | Comments (0)

Friday, April 28, 2023

"Let the Voters Decide"

In discussing Section Three of the Fourteenth Amendment, I sometimes get this question: "Why not just let the voters decide if someone should hold office?" I have a draft paper that discusses this issue in some detail, but let me make some brief points here.

  1. Voters decide among eligible candidates. They don't decide who is an eligible candidate.
  2. A Section Three violation (if there is one) is not technical or de minimus. For example, suppose a candidate needs to submit a certain number of signatures to get on the ballot. She falls two or three short or there are a couple that were filled out incorrectly. An election official could well say that this relatively minor error should not prevent the voters from having another choice. But that argument does not work for Section Three.
  3. Congress is free to grant Section Three amnesty to a candidate to let the voters decide. Neither election officials nor the courts have that power.
  4. The point of Section Three is that certain people cannot hold office even if voters choose them. Thus, "let the voters decide" is tantamount to nullifying Section Three. People could not vote for Jefferson Davis after 1868 no matter how much they wanted him.

In a separate post, I'll take up the argument that disqualifying Donald Trump from the presidential ballot would be "bad for America."

Posted by Gerard Magliocca on April 28, 2023 at 11:12 AM | Permalink | Comments (0)

Thursday, April 27, 2023

More on write-in ballots

Building on Gerard's post, I wrote this in 2016 and this in 2014 about limitations on write-in voting under Florida law (the later post has some useful reader comments addressing Gerard's question). F0rmer Florida Rep. Ileana Ros-Lehtinen wanted to write-in Jeb Bush for president in 2016; I wanted to avoid voting for Ros-Lehtinen in 2014. Florida law requires "write-in candidates" to qualify in advance (so they are not really write-in candidates in the sense Gerard describes). Florida excludes uncontested elections from the ballot because the voter has no choice but the unopposed candidate. Both reflect a prohibition on "let me write in a random name on election day."

Posted by Howard Wasserman on April 27, 2023 at 02:06 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Write-in Candidates

Primary elections are underway, which got me to thinking about the following problem. Suppose I want to vote for my neighbor, who is eligible to serve in the office for which I am voting. But my neighbor is not a candidate. So I march down to the polling place and ask to write in her name. The poll worker responds "That's not allowed under state law." I respond "But I have a constitutional right to vote for whomever I want who is eligible!"

Turns out, though, that you don't. Some states do not permit write-in votes, in toto or for certain elections. Most states do in some form, which raises the question of whether such a right should be recognized. (Granted, if I can write-in someone I can also say "Mickey Mouse" or "Abe Lincoln," but let's stick to living, eligible people for the moment.) There is good sense in saying that voting rights should not be restricted by the ballot. U.S. Term Limits v. Thornton did talk about write-in candidates, but I'm not sure what other cases have.

Posted by Gerard Magliocca on April 27, 2023 at 09:42 AM | Permalink | Comments (0)

World Economic Forum on Agile Governance

Today in Tokyo, I am attending the World Economic Summit on Agile Governance: Governance Principle & the Pluriverse. That is a mouthful - here is the description: 

Digital and physical spaces increasingly coexist in today’s world, creating what some have called a cyber-physical systems (CPS) society. The role of cyberspace as both a source of value and a shaper of the “real” physical world is expanding, yet the social vision and governance model for such a society remains underdiscussed. Efficiency and manageability are hallmarks of highly digitalized CPS societies, but they can also be more humanistic if governed wisely. A well-run CPS society can handle complexity and respond to the diverse needs and values of its members, facilitating harmony and coexistence. The concept of the pluriverse encourages the development of a new, digital-age common sense – a shared vision that enables collaboration and agile governance suited to the needs of our emerging epoch. It is a worldview that includes radical difference and diversity, based not on a modern ontology that universalizes one type of rationality and separates humans and nature, but on a relational ontology in which all living beings and artifacts are interconnected and the principle of non-hierarchy is recognized.

This meeting is part of the G7 Digital and Tech Ministers’ taskforces that I am part of. We have been developing principles for the new digital economy.

Working with Japanese officials and academics on these questions has been particularly rewarding and illuminating for me -- in my book The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, I compare the attitudes of the Europeans and Americans to Japanese and Korean societies in the vision on how automation, AI and robotics can help [or harm] society. The taskforce has confirmed for me that Japan is forward-thinking on these issues compared to European counterparts that focus disproportionately on the risks and potential harms of AI. Of course both are needed - the critical and constructive. 

Posted by Orly Lobel on April 27, 2023 at 04:17 AM | Permalink | Comments (6)

Never a Good Idea to Throw Down with Jon Stewart

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Posted by Steve Lubet on April 27, 2023 at 04:13 AM | Permalink | Comments (11)

Wednesday, April 26, 2023

Harry Belafonte (1927-2023)


Posted by Steve Lubet on April 26, 2023 at 06:13 PM | Permalink | Comments (0)

Roberts to Durbin: Drop Dead

Chief Justice Roberts "respectfully decline[d]" Sen. Durbin's "invitation" to appear before a Senate committee to discuss the wave of ethics concerns surrounding the Court. The letter included a new statement of ethics principles, signed by the nine Justices. Citing "separation of powers concerns and the importance of judicial independence," Roberts (ever the wannabee-but-incomplete-historian, as per his Year-End Reports) recites a laundry list of the times in which the Chief Justice or President has testified before congressional committees, as all were on "mundane matters of judicial administration." Imagine a student whose answer begins and ends with "this has not happened before on a matter this serious, therefore it cannot happen now."

Of course, my students take class assignments more seriously than the Chief Justice of the United States takes a request from the Chair of the Senate Judiciary Committee about a public controversy that undermines the Court's shaky reputation. Roberts' statement rests on a series of unspoken principles that capture the political and constitutional moment.

Continue reading "Roberts to Durbin: Drop Dead"

Posted by Howard Wasserman on April 26, 2023 at 10:46 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)