Tuesday, September 10, 2024
People will come, Ray
In memory of James Earl Jones, who died Monday. I used a piece of his monologue as an epigram my first piece on fan speech.
Posted by Howard Wasserman on September 10, 2024 at 12:55 AM in Howard Wasserman | Permalink | Comments (0)
Monday, September 09, 2024
COSELL 2024 - this Friday and Saturday - full program!
So excited to be co-hosting COSELL 2024. The 19th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL).
here is the full rich program:
COSELL 2024 Schedule
FRIDAY SEPTEMBER 13 – USD Joan B. Kroc Institute for Peace and Justice
8:00: BREAKFAST – Room AB
8:25: Welcome
- Dean Robert Schapiro (University of San Diego School Law)
- Dean Sean Scott (California Western School of Law)
- Professor Orly Lobel (University of San Diego School of Law)
- Professor Susan Bisom-Rapp (California Western School of Law)
8:45 – 10:15 a.m. GROUP 1
PANEL A: Room C
Moderator – Orly Lobel
Ruben Garcia, Hostile Environments
Seema Patel, Whistle While You Work? The Fatal Problem with Whistleblower Regulations in Low-Wage Work Industries
Daiquiri Steele, Whistleblowing Parity
PANEL B: Room D
Moderator – Susan Bisom-Rapp
Tanya Hernández, The Role of DEI Training in Employment Discrimination Law
Diana Reddy, Discrimination as Exploitation
Michael Selmi, DEI and the Private Workplace
PANEL C: Room G
Moderator – Rick Bales
Michael Oswalt, New Independent Union Organizing Campaigns at Starbucks, Amazon, Trader Joe’s, etc.
Gali Racabi, Expressive Employers, Silent Workers
Alvin Velazquez, The Death of Labor Law and the Rebirth of the Labor Movement
10:15 - 10:30 a.m. BREAK
10:30 a.m. – 12:00 p.m. GROUP 2
PANEL A: Room C
Moderator - Ariana Levinson
Rachel Arnow-Richman & J.H. (Rip) Verkerke, Defusing Disclaimers
Jonathan Harris, Neo-Lochnerism Meets Neo-Taylorism: Attacks on Worker Mobility
Orly Lobel, Between Fuzzy Doctrine and Void Contracts: How Trade Secrecy Law Shapes the Breadth of Non-Competes
PANEL B: Room D
Moderator – Marcia McCormick
Stephanie Bornstein, Impact Arbitration
Liz Tippett, “Severe or Pervasive”: Evidence that Courts Dismiss Harassment Cases that Juries Would Find Meritorious
Deborah Widiss, The Sexual Harassment Silo
PANEL C: Room G
Moderator – Gali Racabi
Samuel Estreicher, The Perils of Political Unionism
Joel Heller, Voting at Work
Jeff Hirsch, Labor Regulation of AI
12:00 - 1:00 p.m. Lunch will be served in Room AB
1:00 - 2:30 p.m. GROUP 3
PANEL A: Room C
Moderator – Michael Oswalt
Susan Bisom-Rapp & Urwana Coiquaud, The State’s Role in (De)Standardizing Work: A Government-Focused Approach to Regulatory Capture in the Platform Economy
Doron Dorfman, Work Law for Volunteers
César Rosado Marzán, Alt-Labor’s Laws in Chicago and a Dignity Gap
PANEL B: Room D
Moderator – Tristin Green
Marcia McCormick, Judicial Jujitsu in Anti-Discrimination Law after Bostock
Helen Norton, How the Antidiscrimination Law of Commercial Transactions Really Works
Vicki Schultz, How the DOJ Civil Rights Division Helped Desegregate the American Workforce in the 1960s and 70s
PANEL C: Room G
Moderator – Branden Butler
Michael Green, Responding to Efforts to Eradicate Workplace Law Agencies
Stefan McDaniel, Rearticulating Labor Rights
Courtlyn Roser-Jones, The General Counsel’s Labor Agenda
2:30 - 2:45 p.m. BREAK
2:45 - 4:15 p.m. GROUP 4
PANEL A: Room C
Moderator – Rick Bales
Deepa Das Acevedo, They Said- They Said: Narratives and Counter-Narratives in Tenured Faculty Terminations
Ryan Nelson, Work Law’s Domain
Yiran Zhang, Workification
PANEL B: Room D
Moderator – Jessica Fink
Saru Matambanadzo, Interrogating Accommodation
Nicole Porter, Troubling Trends: ADA Definition in Disability Cases 2019-2023
D’Andra Shu, Remote Work Disability Accommodations Since COVID
PANEL C: Room G
Moderator - César Rosado Marzan
Liz Ford, The (Un)Common Law of Police Collective Bargaining
Ariana Levinson, How Union Negotiations in Worker-Owned Co-ops Compare to More Traditional Negotiations
Noah Zatz, Varieties of Democratization: Labor Law and the Co-op Problem
4:15 - 4:30 p.m. BREAK
4:30 - 6:00 P.M. GROUP 5
PANEL A: Room C
Moderator - Ryan Nelson
Rick Bales, Using AI to Teach LEL and ADR
Aneil Kovvali, Labor Market Competition and Collaboration
Pascal McDougall, Labor Struggle, Law, and the Theory of Competition
Shefali Milczarek-Desai, Is There Hope for Workers’ Rights?
PANEL B: Room D
Moderator - Doron Dorfman
Heidi Liu, Age Discrimination and the Role of Norms
Ben Pyle, Ban the Box: Fair Chance Hiring, Hiring Discrimination Enforcement, and Local Labor Markets
Naomi Schoenbaum, Information Regulation as Antidiscrimination: The Central Provision of the Law of Workplace Equality
PANEL C: Room G
Moderator - Liz Tippett
Jessica Fink, The Benefits and Pitfalls of Backdating #MeToo
Catherine Fisk, Speech @ Work
Tristin Green, Beyond Personal Offense in Antidiscrimination Law: Muldrow’s Return to Work
SATURDAY, SEPTEMBER 14 – California Western School of Law, 350 Cedar Street, San Diego
8:30 - 9:15: BREAKFAST: 1st Floor Lobby
9:15 - 10:45 a.m. GROUP 6
PANEL A: Room LH1
Moderator - Susan Bisom-Rapp
Blair Bullock, The State Takeover of Employment Law
Marcy Karin, Menstrual Bargaining
Alexi Pfeffer-Gillett, The Inconvenience Doctrine
PANEL B: Room LH2
Moderator – Deborah Widiss
Dallan Flake, Religious Sincerity After Groff
Jarod Gonzalez, Private Contractors, Security Clearance Determinations, and Employment Discrimination Law
Madeleine Gyory, The Reasonable Pregnant Worker
Tolu Odunsi-Nelson, Redefining the Scope of Anti-Discrimination Law: Illuminating Colorism Claims as a Basis for Race Discrimination Claims by Black Entertainers
PANEL C: Room 2B
Moderator – Orly Lobel
Louis Cholden-Brown, Lassiter at Work: The Status of Qualified Rights to Counsel
Sofia Cornejo, From Neutral to Integral: A Feminist Analysis of Domestic Violence as a World of Work Issue
Andrea Johnson, Accusations of Racism in the Workplace
Robert Mantell, Two Different Strike Zones: Inconsistent Rules Applied in Winning and Losing Discrimination Cases
Posted by Orly Lobel on September 9, 2024 at 04:21 PM | Permalink | Comments (1)
Saturday, September 07, 2024
Saturday Music Post - Unrelated Cochrans
Eddie Cochran was one of the early rockers, with a rebellious image that was later perfected by Elvis Presley and Bob Dylan. Wayne Cochran was called the White Knight of Soul, and was well known for his friendship with fellow Georgians James Brown and Otis Redding (he played bass on Redding's early recordings). Hank Cochran was less famous than the other two, but was extremely influential in country music, writing hits for Patsy Cline, Eddy Arnold and others. Anita Cochran recorded "Fight Like a Girl" (at the bottom of the post) following her breast cancer diagnosis.
You can see them all at The Faculty Lounge.
Posted by Steve Lubet on September 7, 2024 at 01:17 PM | Permalink | Comments (0)
Friday, September 06, 2024
There Are No Holocaust "Revisionists"
Two recent headlines in the New York Times referred to a "Holocaust Revisionist":
Tucker Carlson Sharply Criticized for Hosting Holocaust Revisionist
Vance Declines to Denounce Carlson After Interview With Holocaust Revisionist
No, no, no, no, no. The so-called "revisionist" in question is Darryl Cooper, who in fact is a flat-out H0locaust denier. As the Times explains several paragraphs into the article:
Mr. Cooper, who has a podcast and newsletter called “Martyr Made,” proceeded to make a variety of false claims about the Holocaust and World War II, including that millions of people in concentration camps “ended up dead” merely because the Nazis did not have enough resources to care for them, rather than as a result of the intentional genocide that it was.
The White House got it right, which wasn't difficult:
“Giving a microphone to a Holocaust denier who spreads Nazi propaganda is a disgusting and sadistic insult to all Americans, to the memory of the over six million Jews who were genocidally murdered by Adolf Hitler, to the service of the millions of Americans who fought to defeat Nazism and to every subsequent victim of antisemitism.”
Holocaust deniers routinely call themselves "revisionists" to give their "moral rot" (as the White House put it) a veneer of respectability. One of their main organizations, for example, is called the Institute for Historical Review.
But the truth is that they are antisemitic deniers with no intellectual legitimacy, as Deborah Lipstadt proved in London almost 30 years ago.
There is no excuse for the Times to use the term "Holocaust revisionist" in 2024. I realize that the reporters don't write the headlines, but the editor who wrote this one should be reassigned.
Posted by Steve Lubet on September 6, 2024 at 02:41 PM | Permalink | Comments (0)
Thursday, September 05, 2024
FIU College of Law seeks tenure-track doctrinal faculty
Florida International University College of Law, South Florida’s public law school, invites applicants for multiple tenure-track positions to begin no later than the 2025-26 academic year. We seek candidates in Environmental Law, Intellectual Property/Technology, and Criminal Law and Procedure, as well as coverage in other first-year and core upper-level courses such as Administrative Law.
Continue reading "FIU College of Law seeks tenure-track doctrinal faculty"
Posted by Howard Wasserman on September 5, 2024 at 11:57 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
FIU College of Law seeks legal writing faculty
Florida International University College of Law, South Florida’s public law school, invites applicants for a contract position in Legal Skills and Values, to begin no later than the 2025-26 academic year.
Continue reading "FIU College of Law seeks legal writing faculty"
Posted by Howard Wasserman on September 5, 2024 at 11:56 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Blogging Sabbatical
I've been an active blogger for fifteen years. After much reflection, I've decided that it's time for an extended break. Academic sabbaticals give people time to reflect and to work on other projects. The same will be true here.
I'll be back sometime next year. In the meantime, as Edward R. Murrow used to say when signing off, "Good night, and good luck."
Posted by Gerard Magliocca on September 5, 2024 at 11:07 AM | Permalink | Comments (0)
AI and oral assessments
Over the years, we have had many posts and conversations about oral assessments. I have written about my oral arguments in Fed Courts and Civil Rights, which now provide the sole end-of-semester assessment (everything else happens in-semester).
A thought this morning: Would oral assessments provide a solution to the Chat GPT/AI problem?
Posted by Howard Wasserman on September 5, 2024 at 06:41 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Tuesday, September 03, 2024
Defending Michael Roth
Not that he needs me to. I agree with Steve--and have said as much, here and elsewhere--that university's discovery of the freedom to offend and to express the idea we hate miraculously appeared only when offense began targeting Jews.
As to Roth*: My instinct is to take him at his word--he intends to apply "no right not to be offended" across the board. He said as much during the parents' convocation last week. Of course, that tells us nothing about how the administrators in the DEI office act on the ground, but I only know so much at this point.
Full disclosure: I have been a fan for many years, since long before the current campus controversies or my kid's interest in going to the school. I saw video of him (from just after the Great Recession, when the bottom dropping out of humanities began accelerating) defending liberal arts and college education being about more than getting a job; I was hooked. That he has (mostly) gotten the speech stuff right--and that my kid decided to go there--only adds to my fanboydom.
Roth said something else to parents I found interesting: That students have a right not to be harassed but no right not to be offended and that the line between them is clear and obvious in most cases. And I think most people in that room agreed--it is clear and obvious. But I expect most would disagree with me (and him) about which side any particular case fell.
Posted by Howard Wasserman on September 3, 2024 at 02:50 PM in Howard Wasserman | Permalink | Comments (0)
A Stunning Reversal on Academic Boycotts Is All about Israel
My new essay in The Hill explains how the AAUP’s new position – legitimizing academic boycotts – is a threat to the principle of academic freedom. Here is the gist:
A stunning reversal on academic boycotts is all about Israel
There was a time when the American Association of University Professors (AAUP) deserved its self-description as the “most prominent guardian of academic freedom” for faculty and students in the U.S., but not any longer.
Last month, the organization rescinded its long-standing opposition to academic boycotts, which it had previously recognized as aiming “directly at the free exchange of ideas,” in favor of a new policy declaring that such boycotts “can legitimately seek to protect and advance . . . academic freedom and fundamental rights.”
The turnaround is a betrayal of academic values, which ideally comprise the “freedom of teachers and researchers to engage in work with academic colleagues” and “the freest possible international movement of scholars and ideas,” without political restraints.
You can read the entire essay in The Hill.
Posted by Steve Lubet on September 3, 2024 at 01:31 PM | Permalink | Comments (0)
More on Wesleyan
Howard skeptically comments below on Wesleyan President Michael Roth's NYT op-ed, explaining that last Spring's Gaza encampment was permitted to continue because the students' "right to nonviolent protest was more important than their modest violations of the rules." In his persuasively understated way, Howard calls this a "unique take," which will of course invite greater disruptions.
I found another aspect of Roth's oped equally dubious:
I also met with pro-Israel students, mostly Jewish, some of whom felt beleaguered by what their classmates were saying. I made clear that if any of them felt harassed, I would intervene. I also said that I could ensure their ability to pursue their education, but that I could not protect them from being offended.
That would be a welcome change on many campuses, given the tendency of DEI offices to intervene whenever students claim to feel "unsafe." The question, of course, is whether Roth, or any other university administrator, will apply the "no protection from offense" policy to any groups other than Jews.
Posted by Steve Lubet on September 3, 2024 at 11:21 AM | Permalink | Comments (0)
VAPs and Fellowships 2024-2025
A spreadsheet for candidates to track information about VAPs or similar fellowships (for example, the Climenko and Bigelow) for the 2024-2025 hiring cycle is now available. In the spreadsheet, you can enter information regarding screeners, callbacks, offers, and so forth. You can also write more general comments.
The tabs on the spreadsheet marked "Comments" and "Q&A" will, I hope, serve as substitutes for the comment thread on Prawfs, as the commenting function on Typepad is in serious technical trouble. If people have questions about the process, please post them on the Q&A tab, and everyone -- including current professors and fellows -- please chime in and answer!
Anyone can edit the spreadsheet; I will not be generally editing it or monitoring it.
Here is last year's thread and last year's spreadsheet.
Posted by Sarah Lawsky on September 3, 2024 at 11:16 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Monday, September 02, 2024
Hiring Committee Topics of Interest 2024-2025
As of September 2, 2024, there are 134 unique schools represented in the hiring committees sheet. (If your committee is not represented on the spreadsheet, please fill out the Google form or send me an email!) Many, though not all, of these schools expressed interest in particular subject or subjects for hiring. Of course, that a school expresses interest in a particular area does not mean that the school will hire in that area. And schools may hire in areas that they do not list. Nonetheless, to see in what areas schools expressed interest, I classified all the topics listed to general classifications, and then counted the numbers of times each general classification was mentioned (graph below; see a spreadsheet with the full list and count; you could do this one-by-one in the filtering tool if you wanted to for some reason).
Continue reading "Hiring Committee Topics of Interest 2024-2025"
Posted by Sarah Lawsky on September 2, 2024 at 05:10 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
"Modest violations of the rules"
Wesleyan (where my son had his first class this morning) President Michael Roth published a NYT op-ed encouraging more political activity on campus this year, arguing that universities exist for the good of the individual and the good of the world, inherently political and public-leaning spaces in which to "practice democracy."
Speaking of last spring's encampments, Roth writes "[s]ince the protest was nonviolent and the students in the encampment were careful not to disrupt normal university operations, we allowed it to continue because their right to nonviolent protest was more important than their modest violations of the rules." Framing long-term encampments as "modest violations of the rules" is a unique take--certainly different from the notion that the encampments represented a sea change from small rulebreaking for a limited time to something "more aggressive, more interfering, and more permanent."
Posted by Howard Wasserman on September 2, 2024 at 12:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Musk suit proceeds v. Media Matters
So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.
On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.
On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).
While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.
Posted by Howard Wasserman on September 2, 2024 at 11:50 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday, August 31, 2024
Do reasons for non-enforcement matter?
The Eighth Circuit declared invalid a Missouri law that a bunch of federal laws related to firearms "shall be invalid to this state, shall not
be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." No state or local officials possess enforcement authority. And the law creates a private right of action (because Republican lawmakers believe that is the magic bullet to stop everything they do not like) against any public official who enforces the law.
Missouri argued (correctly) that it can refuse to allow its officers to enforce federal law; thus, the reasons for refusing to enforce do not matter. Here, in full, is the Court's response:
That Missouri may lawfully withhold its assistance from federal law enforcement, however, does not mean that the State may do so by purporting to invalidate federal law. In this context, as in others, the Constitution “is concerned with means as well as ends.” Horne v. Dep’t of Agric., 576 U.S. 350, 362 (2015). Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be ‘consist[ent] with the letter and spirit of the constitution.’” Id. (quoting McCulloch, 7 U.S. (4 Wheat.) at 421) (alteration in original). Missouri’s assertion that federal laws regulating firearms are “invalid to this State” is inconsistent with both. If the State prefers as a matter of policy to discontinue assistance with the enforcement of valid federal firearms laws, then it may do so by other means that are lawful, and assume political accountability for that decision.
I am a formalist and even I recognize this as utterly mindless formalism. This is not 1833 South Carolina preparing to wield the militia against federal enforcers. There is no meaningful difference between "federal law is illegal in this state and we will not enforce it" and "federal law is stupid and we will not enforce it" and "we don't wanna enforce it just 'cause and you can't make us--nyah." Missouri can reenact the identical law tomorrow and rely on #2 or #3 and land in the same place--no state or local enforcement, private right of action against any officer who attempts to enforce.
Maybe the law could include a preamble or finding saying "We, the legislature, believe these laws are invalid to this state, should not be recognized by this state, should be specifically rejected by this state, and shall not be enforced by this state, but the activist federal judges will not let us say that."
Posted by Howard Wasserman on August 31, 2024 at 08:21 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday Music Post - Angelic Voices
"Seven Spanish Angels" was released by Willie Nelson and Ray Charles in 1984, becoming Charles's most successful hit on the Country charts. It was conceived by Troy Seals and Eddie Setser as a sort of Marty Robbins song, but Robbins had died in 1982. They offered it to Willie Nelson, who agreed to record it, but Ray Charles's producer had heard the demo and suggested it as a duet.
Brilliant idea, which you can enjoy along with many covers on The Faculty Lounge.
Posted by Steve Lubet on August 31, 2024 at 05:35 AM | Permalink | Comments (0)
Thursday, August 29, 2024
Information Technology Chair Search
It's a busy hiring year for my school. We are also initiating a search for a new Information Technology Chair. Again, feel free to contact me if you are interested or have questions.
Posted by Gerard Magliocca on August 29, 2024 at 10:52 AM | Permalink | Comments (0)
Wednesday, August 28, 2024
A New Research Project
Senator Birch Bayh's papers are held by Indiana University. Senator Bayh was the longtime chair of the Senate Subcommittee on Constitutional Amendments (from the early 1960s until the late 1970s). That committee gave us the 25th and 26th Amendments along with the ERA. I'm planning to do a deep dive into the Subcommittee's materials to see if there might be a compelling story to tell. One thing that I see already is that the Subcommittee served as something of a real-time critique of the Warren and Burger Courts. In other words, conservatives would introduce constitutional amendments to overrule decisions that they did not like. Maybe there is more.
Posted by Gerard Magliocca on August 28, 2024 at 06:57 AM | Permalink | Comments (0)
Tuesday, August 27, 2024
Health Law Chair Search
The Indiana University Robert H. McKinney School of Law is conducting a search for our chair in Health Law. The Chair would also be the Director of our Health Law Center. Please contact me if you are interested in applying.
Posted by Gerard Magliocca on August 27, 2024 at 08:28 AM | Permalink | Comments (0)
Monday, August 26, 2024
CFP: Federalism Scholarship Roundtable
Continue reading "CFP: Federalism Scholarship Roundtable"
Posted by Howard Wasserman on August 26, 2024 at 04:57 PM in Teaching Law | Permalink | Comments (0)
Sunday, August 25, 2024
Handball
Like many people every four years, I love team handball. Denmark won the men's Gold and Norway the women's Gold (with Denmark taking the bronze).*
[*] My non-sports-fan niece did a semester in Copenhagen. One day she and some friends encountered a massive crowd celebrating on the streets--turned out they were celebrating some big win by one of the teams. They had no idea why the crowd was out there but they joined the celebration anyway.
I do not understand why handball is not bigger in the United States, at least as a college sport. It fits the U.S. sports mentality--high-scoring, fast-paced, lots of running and jumping, and physical, although without the concussion risks of football and other tackling sports. (For example, it is a penalty and "suspension" to hit the goalie in the face with a shot, even accidentally). It combines elements of sports Americans already play and watch--basketball, soccer, lacrosse, baseball. It could attract good athletes from these sports with the promise of teaching the skills. For comparison, lacrosse (men's and women's) has developed a high profile at the collegiate level, including a fair number of nationally televised games. Many top programs (especially as the women's game developed) began with coaches seeking out good athletes and taking care of the rest. It seems to me the same could and should happen with handball, which involves skills (dribbling, throwing, running, jumping) that players already possess and do not require them to learn to handle a new piece of equipment.
As the host nation for the 2028 Olympics, the U.S. team automatically qualifies for the tournament. The U.S. is nowhere near ready to compete against the best international teams. But maybe a good showing will spark interest in the sport at lower domestic levels. In fact, that was USA Team Handball's plan in the mid-aughts when Chicago vied for the 2016 Games--get a team into the tournament and create interest and passion for a cool game. Maybe it can happen 12 years late.
Posted by Howard Wasserman on August 25, 2024 at 02:37 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Saturday, August 24, 2024
University of San Diego School of Law - We are Hiring!
Happy FAR Form Week from The University of San Diego School of Law! We are looking for three to four new colleagues (both entry-level and lateral) to join our active and engaged faculty. We are always looking for excellent scholars in any field - and I think you will find a great intellectual home with us. So please send your materials our way.
We have a specific interest this year in Criminal Law, Criminal Procedure, Evidence, Civil Procedure, and Immigration. But again, open to all fields.
Please email [email protected] with interest, regarding yourself or if you know of great prawfs looking to make a move! And always happy to personally discuss the school, the process, the academic job market. good luck to all!
Posted by Orly Lobel on August 24, 2024 at 04:46 PM | Permalink | Comments (0)
Saturday Music Post - With a Little Help from My Friends
"With a Little Help from My Friends" was the second track on the Beatles' 1967 album Sgt. Peppers Lonely Hearts Club Band. The vocal was by Ringo Star, in the persona of the band's lead singer, The One and Only Billy Shears. It was not released as a single at the time, but Joe Cocker did release it as a single in 1968, reaching number one on the British charts but only 68 on the U.S. Hot 100. Nonetheless, Cocker's performance of it at Woodstock was legendary (see bottom of the post, right after the audio from Sgt. Pepper), and many probably remember his version more than the Beatles'. Interestingly, the Beatles's version was reissued as a single in 1978 (I am not sure how that was authorized), but it went nowhere. "With a Little Help from My Friends" was never performed live by the Beatles, but Ringo has included it in his live sets, often with guest stars as a duet.
All of that can be seen and heard at The Faculty Lounge.
Posted by Steve Lubet on August 24, 2024 at 06:30 AM | Permalink | Comments (0)
Friday, August 23, 2024
Governor Hochul’s Lawless Vetocracy over Congestion Pricing: Why Undermining the Independence of Public Authorities Destroys Political Accountability
David Siffert and I have just filed an amicus brief (available here) on behalf of four state legislators in the litigation over Governor Hochul’s purported “pausing” of congestion pricing. I have already posted an item explaining why I believe that Governor Hochul’s assertion of power is lawless. In brief, the plain text of New York’s Traffic Mobility Act (“TMA”) gives the Metropolitan Transportation Authority’s Board power to design, implement, and operate the statutorily required congestion pricing system, to the exclusion of the governor. The statutory command could not be clearer: Vehicle & Traffic Law section 1704(b) specifies that the Board “shall…plan, design, install, construct, and maintain a central business district toll collection system and implement and operate the same to collect the central business district toll.”(This textual argument is cogently laid out by the brief filed by Emery Celli on behalf of City Club of New York and two other petitioners).
Our amicus brief supplements this textual argument with an argument about legislators’ intent. The simple point of our brief is that the legislators (four of whom are our clients) understood the MTA Board to be an independent public authority not subject to being bossed by the Governor. On pages 4-6 of our brief, we summarize and cite to legislators’ statements that they understood the MTA, not the governor, to be in charge. (Kudos to our outstanding RAs for listening to hours of YouTube videos of hearings to find this stuff!) Beyond statements from legislators, we quoted multiple statements by Governor Andrew Cuomo, the person who proposed congestion pricing in 2017, declaring that he was not in charge of the MTA and could not control its actions. (For a good example, see this 2018 CBS story).
We would be delighted if Justice Engoron concluded that the statutory text so plainly excludes gubernatorial power over congestion pricing that any reference to this legislative history is unnecessary. That legislative history, however, usefully reveals how judicially inferring unwritten gubernatorial powers to veto or “pause” the MTA Board erodes political accountability by complicating responsibility for the tolling program. Mayors and governors like to invoke the MTA’s “independent” status to avoid taking blame for poor subway service. That’s already confusing to voters. Adding an unwritten, essentially hidden gubernatorial “pause” power to the mix makes the entire system utterly unintelligible: It creates the ultimate covert vetocracy (to use Fukuyama’s term) in which governors have the power to say “no” but no responsibility to provide good subway service.
Posted by Rick Hills on August 23, 2024 at 08:23 AM | Permalink | Comments (0)
Thursday, August 22, 2024
Petition Opposing Academic Boycotts [UPDATED]
UPDATE: Over 3000 signatories as of 10:00 AM ET 8/22
Please consider signing this petition opposing the AAUP’s recent endorsement of academic boycotts. As you may know, the AAUP has just reversed its two-decades long opposition to academic boycotts, effectively abandoning a core principle of academic freedom.
The AAUP’s new position is wrong-headed and dangerous. The normalization of academic boycotts poses a profound threat to academic freedom. As the AAUP itself stated in 2005:
“We reject proposals that curtail the freedom of teachers and researchers to engage in work with academic colleagues, and we reaffirm the paramount importance of the freest possible international movement of scholars and ideas.”
Recent events have not diminished the importance of this principle. However directed, academic boycotts inevitably undermine scholarly exchanges, joint research programs, and instructional collaborations, thereby violating individual scholars’ and students’ academic freedom.
You can read the entire petition here. You can sign it here.
Please note: the petition does not extend to economic boycotts, sanctions, or weapons embargoes. Its sole objective is to endorse the broadest possible freedom of academic study, exchange, and publication.
Also, I am an AAUP member, but the petition is open to all academics, whether members or not.
Posted by Steve Lubet on August 22, 2024 at 11:47 AM | Permalink | Comments (0)
Number of FAR Forms in First Distribution Over Time - 2024
The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.
2009: 637; 2010: 662; 2011: 592; 2012: 588; 2013: 592; 2014: 492; 2015: 410; 2016: 382; 2017: 403; 2018: 344; 2019: 334; 2020: 297; 2021: 328; 2022: 272; 2023: 348; 2024: 352.
(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please contact me and I will update accordingly.)
Posted by Sarah Lawsky on August 22, 2024 at 11:21 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Law School Hiring Spreadsheet and Clearinghouse for Questions, 2024-2025
A spreadsheet for tracking law school hiring interviews and offers for the 2024-2025 hiring cycle is now available. In the spreadsheet, you can enter information regarding screeners, callbacks, offers, and so forth. You can also write more general comments.
The tab on the spreadsheet marked "Q&A" will, I hope, serve as a substitute for the comment thread on Prawfs, as the commenting function on Typepad is in serious technical trouble. If people have questions about the teaching market or process, please post them on that tab, and everyone -- including current professors -- please chime in and answer!
Anyone can edit the spreadsheet; I will not be generally editing it or monitoring it.
You may want to take a look at the many questions and answers in the threads from 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020, 2020-2021, 2021-2022, 2022-2023, 2023-2024. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.
Posted by Sarah Lawsky on August 22, 2024 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Tuesday, August 20, 2024
Not just federal judges
There seems to be problem with judges acting out some skewed version of Scared Straight with people who do not meet their standards of decorum. Lacking life tenure, this guy may suffer consequences--he has been suspended, although only pending "sensitivity training."
Interestingly, the judicial immunity question may be more favorable to the girl, should she pursue a § 1983 action. I described why Judge Benitez was on the line. But as I read this story, Judge King was not presiding or conducting any proceeding when this happened. It was in court and the judge was in his robe, but he was conducting an educational program for a youth group, which should not be a judicial function (the group had watched a trial, but the trial had ended).
Posted by Howard Wasserman on August 20, 2024 at 06:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Running for Two Offices At the Same Time
Some states have statutes that say a person cannot run for two offices in the same election. This makes sense with respect to state or local offices. But what if someone wants to run on the national ticket and for another office in the same election? Can a state bar that?
This issue comes up now and then. LBJ got Texas law changed for the 1960 election so that he could run for Vice President and reelection to the Senate. The same law allowed Lloyd Bentsen to do the same in 1988. Delaware law allowed Joe Biden to run for Vice President and the Senate in 2008.
Suppose, though, that a state did not let someone run for two national offices simultaneously. Would that be constitutional under Thornton? Probably not. The state could be seen as adding a qualification for national offices that is not in the Constitution.
Maybe this is different if the person is running for Governor and, say, Vice President. A state can impose additional qualifications on candidates for state office. I'm not sure that the Constitution requires the freedom to double-dip for national and state office--maybe you just have to choose not to run for state reelection.
Posted by Gerard Magliocca on August 20, 2024 at 09:41 AM | Permalink | Comments (0)
Monday, August 19, 2024
We Blew It in 1968
My new essay in The Hill is a cautionary tale for this week’s protests at the DNC. Here is the gist:
The 1968 DNC protests gave us Nixon. We don’t need a 2024 repeat.
Almost exactly 56 years ago, I was at the 1968 Democratic National Convention in Chicago, along with tens of thousands of other angry protesters against the war in Vietnam.
We blew it in 1968, undermining Humphrey, who strongly supported civil rights and the labor movement, even when he belatedly distanced himself from Johnson and called for an end to bombing North Vietnam.
We got Nixon, the worst criminal ever to occupy the White House up until that point.
This year’s pro-Palestine demonstrators would do well to be wiser and more strategically savvy. They can make their point without enabling another criminal presidency.
You can read the full essay at The Hill
Posted by Steve Lubet on August 19, 2024 at 02:32 PM | Permalink | Comments (0)
Saturday, August 17, 2024
Why randomize assignments?
I guess I should have considered this when I answered Gerard's first question, but here goes: What would be the point of randomized assignments? Of all the things Congress can try to bring the Court to heel, why would it want to do this? Is the idea that analysis and precedential effect (if not outcome in this case) might change if Justice Barrett wrote a particular opinion rather than Justice Thomas? Assuming agreement on basic principles and given the collective nature of the writing process, would the final opinion be so different?
And might there be unintended consequences? Unable to get everything he wants, Justice Alito leaves the opinion in a 5-4 and writes separately, eliminating the majority and, to the extent Marks matters, giving more power to his individual opinion without him having to do the work of maintaining a majority. Do we lose something if there is no Justice who becomes the go-to person on some issues (e.g., Ginsburg on procedure or Gorsuch on Indian law).
If it does not do much as a stand-alone change, it might be a cute addition to Sherry's plan--random assignment of that single, unsigned, unenumerated opinion. This creates further distance between individual Justices and case outcomes.
Posted by Administrators on August 17, 2024 at 06:03 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Saturday Music Post - You've Really Got a Hold on Me
"You've Really Got a Hold on Me" was written by Smokey Robinson in 1962. Said to have been influenced by Sam Cooke's "Bring It on Home to Me," it was a million-seller for the Miracles. The most famous cover was by the Beatles, and there have been plenty of others (often under the slightly less grammatical title, "You Really Got a Hold on Me").
The clips are at The Faculty Lounge.
Posted by Steve Lubet on August 17, 2024 at 05:14 AM | Permalink | Comments (0)
Friday, August 16, 2024
Well, Here's One Answer
[A] Justice cannot speak on behalf of the Court for, say. an entire Term. The Justice can still sit and write separately. . . . I ask because this is the only sanction that strikes me as lawful and somewhat significant.
Even if constitutional, it would be impossible to prevent the other majority justices from joining the sanctioned justice's opinion.
But a more effective sanction might be eliminating a clerkship for a term, which has the additional benefit of being enforceable by Congress's appropriation (that is, non-appropriation) without relying on cooperation from the Court.
Posted by Steve Lubet on August 16, 2024 at 12:53 PM | Permalink | Comments (2)
OK, Then Here's The Next Question
Suppose that Congress regulates the assignment power as the stick in a Supreme Court ethics reform bill. In other words, the sanction for doing something unethical (whatever that is and determined by whomever) is that a Justice cannot speak on behalf of the Court for, say. an entire Term. The Justice can still sit and write separately.
Is this a good idea? I ask because this is the only sanction that strikes me as lawful and somewhat significant.
Posted by Gerard Magliocca on August 16, 2024 at 12:45 PM | Permalink | Comments (0)
It should be constitutional
In answer to Gerard's question: Suzanna Sherry proposed a system in which the Court issues one per curiam majority opinion, without names or counts. She defends constitutionality by arguing, in essence, that Congress cannot dictate or influence resolution of a case but can control how the Court communicates its decision. I think her argument would support the choice of who communicates the decision for the Court as well as how the Court presents that decision.
Posted by Howard Wasserman on August 16, 2024 at 11:23 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Changing the Assignment Power
Suppose Congress enacted a law that removed the Chief Justice's assignment power and said something like: "Each opinion for the Court shall be assigned randomly to a member of the majority." Would that be constitutional? The Chief Justice's assignment power is, of course, just a custom that has evolved over time.
Posted by Gerard Magliocca on August 16, 2024 at 09:13 AM | Permalink | Comments (0)
Thursday, August 15, 2024
Faculty Hiring
Posted by Howard Wasserman on August 15, 2024 at 02:38 PM in Howard Wasserman | Permalink | Comments (0)
Collegiality for collegiality's sake
Steve Vladeck's latest Substack (paywalled) discusses Justice Kagan's remarks at the Ninth Circuit Conference. With respect to collegiality, Steve quotes Kagan and writes the following:
Third, and in a similar vein, in responses to questions about how the justices are getting along internally, Justice Kagan pivoted to a response about why the answer shouldn’t matter that much to the public—not because collegiality is unimportant, but because the issue isn’t whether the justices are friendly; it’s whether their relationships influence their colleagues. As she put it:
“I can’t imagine why the public should care if we go to the opera together, or we can talk about baseball together. What the public should care about is … if the collegiality brings about a certain kind of decision-making process. In other words, if it leads to people listening to each other in talking about the law and in talking about cases and making decisions. If it leads to people being able to step into each other’s shoes and see the world through another person’s eyes or see certain legal issues through a different perspective.
Again, I think there’s some nuance here. The point is not, as some accounts reported it, that the justices’ collegiality is unimportant; it’s that it’s important as means to an end—with a subtle insinuation that there isn’t enough of that kind of camaraderie on the Court today.
I made a similar point years ago when people complained that President Obama and Speaker John Boehner could not sit down and have a beer, comparing them unfavorably with the Scalia/Ginsburg safaris and opera trips. I pointed out that this friendship rarely convinced either person to switch a position or compromise--which is what everyone wanted from Obama and Boehner. We do not want collegiality on multi-member bodies for its own sake, but as a means to a better-functioning multi-member body. (With Kagan pushing the ideal of empathy that Obama proposed but never defended). Media coverage of politics and the Court (stuck in a Sorkin-esque vortex of wanting everyone to get along and agree with one another) cannot see past the former.
Posted by Howard Wasserman on August 15, 2024 at 01:33 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
The Political Economy of, inter alia, Law and Political Economy
From this recent (and paywalled) piece in New York Magazine by Jonathan Chait:
Six months after Obama left office, Larry Kramer, a law professor and president of the William and Flora Hewlett Foundation, convened a meeting at the ‘21’ club in Manhattan. The group included an array of leading philanthropists, think-tank heads, donors, progressive writers, and academics. As Michael Tomasky, one of the participants, later reported, the group continued its discussions the following day at the Ford Foundation, where its members began to envision themselves as the founders of a new intellectual paradigm that would move beyond the failed neoliberalism of the Obama era....
[A]nti-neoliberalism had some key advantages that made it irresistible to its progressive audience. It supplied an explanation for Trump’s victory that did not require progressives to compromise on their political values in order to allow Democrats to regain power. To the contrary, this theory allowed — nay, demanded — the fulfillment of every progressive wish. A Green New Deal, a jobs guarantee, higher minimum wage, Medicare for All — these proposals were not only possible but politically necessary to defeat Trump.
The plan devised by Kramer and his allies explained how anti-neoliberal thought would be disseminated. “It makes sense to begin with the academy and think tanks — though we will not want to confine ourselves exclusively to these even in the beginning — and to work out from there in subsequent stages,” a Hewlett strategy document explained. Hewlett poured $140 million into grants to writers, magazines (The Atlantic, Washington Monthly, and The American Prospect, among many others), conferences, podcasts, academic centers (at universities like Harvard, Columbia, and Georgetown), and think tanks. The Roosevelt Institute’s budget more than tripled. The massive upsurge in demand for essays, columns, and lectures assailing neoliberalism was met rapidly with a booming supply....
Devotees of the anti-neoliberal movement gained special access. Jennifer Harris, who had been running a Hewlett Foundation grant program called the Economy and Society Initiative, which sought to counter neoliberal thinking, joined the administration and became, as the Times put it in a flattering profile, “the Queen Bee of Bidenomics,” who “had a hand in everything from making the case for industrial policy to designing a new framework for trade.” Twenty-five grantees from Harris’s project, as well as two fellow Hewlett employees, joined her in the administration.
I offer all of this in a fairly value-neutral way, descriptive way. At most, the value added here is just good plain caution. I am not endorsing or disagreeing with the rest of Chait's article. I definitely don't intend this as a criticism of law and political economy as a scholarly endeavor. (I understand that some members of the law and political economy movement who currently reside in the academy may also understand LPE as a political project and either move, or see themselves moving, between the academy and other, non-intellectual spaces, such as think tanks, foundations, congressional staff, and the executive branch. I don't intend this as a judgment of that branch, either, but to the extent that those individuals are engaged in extra-academic matters that involve seeking and exercising power and status, of course they deserve careful scrutiny, journalistic investigation, and, where warranted, criticism. If you're in the arena, you're in the arena.) To the contrary, I find the best of the law and political economy work excellent and provocative, although I remain perplexed that so much of it says so little about the prior 250 years of work in political economy. (To be sure, a certain number of articles are creeping into the law reviews that bear the words "political economy of" in their titles but say nothing for which any grounding in political economy, old or new, is required. But that is pretty standard in the period when a new entrant into the "law and" field becomes sexy. The best work should not be blamed for the inevitable coattail-riding. Only the authors of that work, and law review editors, and the legal academy for relying on law review editors, should bear the blame.)
At most, I offer it to suggest the following: 1) As Jesus said, if I recall correctly, the rich are always with us. That most definitely includes academics, philanthropists, and "progressive writers" who hang out at the 21 Club or the Ford Foundation building. 2) As I suggested the other day, journalism lost a lot when the era of mass and diffuse funding from large and small businesses through advertising faded. Targeted funding from ideologically committed groups for specific projects is dangerous as hell, and one should distrust the magazines, radio networks, and other media organs that take that money, with or without disclosure. 3) Mocking the number of people and projects that are in a symbiotic relationship with and draw sustenance from the teat of foundations, billionaires, establishment types, and so on is pretty low-hanging fruit. It should be plucked at every opportunity. 4) More to the point, it should be observed. For every political economy-draped narrative that involves political movements, funded by shadowy figures with connections to vast reserves of money, engaged in ideological projects and seeking to extend their power and influence, there is almost certainly a counter-narrative about the money, foundations, shadowy figures, and unmentioned motives behind the effort to frame, publicize, and exploit that narrative. As long as things like foundations, funders, and project meetings are involved, there is a political economy story--one that generally involves competition for power, status, influence, employment, funding, and prestige within both the elite academic ecosystem and the foundation/think-tank/rich-philanthropist-heir ecosystem. It's a competition for money, power, and status all the way down.
Personally, I always find both sides of the game--both the shadowy networks that are written about and the shadowy networks that write about them--interesting and worth investigating. It's only when we pretend only one side exists that we fail in our intellectual duties and risk being suckered.
Posted by Paul Horwitz on August 15, 2024 at 12:27 PM in Paul Horwitz | Permalink | Comments (0)
Wednesday, August 14, 2024
Survey of Law Fellowships and VAPs
The following is a guest post from Nikita Aggarwal:
Fellowships and VAPs have become an important credential for entry-level positions in the U.S. legal academy. Jobseekers face a high level of informational opacity and asymmetry about the quality of fellowships and VAPs, i.e., the extent to which these programs help candidates prepare for, and succeed in, the entry-level job market. To help alleviate these informational constraints and improve the functioning of the fellowship and VAP market, I am carrying out a survey of former fellows and VAPs. To ensure the currency of the data, the survey is limited to those who completed fellowships in the last two academic years only (AY 2022-23 or AY 2023-24). If you completed a law fellowship or VAP program in the last two years (AY 2022-23 or AY 2023-24), please consider filling out the Google form available at this link. Your responses will be aggregated, anonymized, and published in a searchable database, along with publicly available information about fellowship and VAP programs. Your name and email address will be collected to confirm your identity and mitigate fraudulent responses. But all personal identifiers, including your name and email address, will be removed before publication.
Please feel free to email me with any queries or to share additional information: [email protected].
Updated 8/15/24 to add sentence regarding currency of the data.
Posted by Sarah Lawsky on August 14, 2024 at 07:54 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Tuesday, August 13, 2024
Upcoming Symposium: Mass Torts Inferno: New Battle Lines in the Resolution Debate
Cornell Law Review will host its 2024 Symposium, Mass Torts Inferno: New Battle Lines in the Resolution Debate, on September 20, 2024 in Ithaca, New York. Modern mass torts involve hundreds of thousands of victims affected by various types of tortious conduct ranging from sexual abuse and asbestos exposure to opioid trafficking. This symposium brings together diverse scholars to address the new, non-class aggregate litigation strategy that is reshaping the field. It also seeks to create a dialogue among scholars and practitioners of tort law, bankruptcy law, civil procedure, and constitutional law. The law review is proud to partner with Andrew Bradt, Sergio Campos, Zachary Clopton, Alexandra Lahav, and Samir Parikh to present this event.
For those interested in attending, please contact Griffin Perrault at [email protected].
Posted by Howard Wasserman on August 13, 2024 at 05:07 PM in Teaching Law | Permalink | Comments (0)
Changes to Criminal Law course (advice welcome!)
This Fall will be (I think) the 17th time I've taught the first-year Criminal Law course. (At Notre Dame, the class is sometimes in the Fall, and sometimes in the Spring. For what it's worth, I strongly prefer the Fall.) The course and assignments have evolved over the years (for example, for the first few years, I didn't teach any of the sexual-assault materials) but, at the same time, I cannot pretend to have made any dramatic overhauls for a while.
This year, I've made a few changes to the Download Criminal Law Syllabus (Fall 2024), though, and I'd welcome feedback about them. In particular, I added coverage, in the actual-crimes section, of theft (larceny) and possession (drugs and guns) to criminal homicide and sexual assault (and cut down on necessity and duress). And (with regret), I dropped a requirement I have often used that students read a scholarly monograph on criminal-law-related policy/reform (in addition to the casebook stuff). In the past, I've used books by Rachel Barkow, Stephanos Bibas, John Pfaff, and others. But, I decided this year that this requirement was possibly introducing excessive varation (and workload differences) among our three sections. Sigh.
Posted by Rick Garnett on August 13, 2024 at 02:48 PM in Criminal Law, Rick Garnett | Permalink | Comments (6)
Monday, August 12, 2024
Ineligible Presidential Electors
The Constitution imposes some qualifications for presidential electors. They cannot be sitting members of Congress. They cannot hold "an Office of Trust or Profit under the United States." And they cannot have violated Section Three of the Fourteenth Amendment.
Suppose that an elector is challenged on one of these grounds. Who decides if the elector is ineligible? While this question was raised in some past presidential elections, no clear answer was ever given. Maybe the Joint Session of Congress is the judge. Maybe it's the other electors from the state in question. Or maybe it's state law as applied by state courts. All three of these alternatives were proposed.
Let's hope this issue is not presented in the coming months.
Posted by Gerard Magliocca on August 12, 2024 at 08:53 PM | Permalink | Comments (0)
A Reply to Howard on the Press
I appreciate Howard's courteous reply. I hope it is clear that my rather tartly worded post is aimed not at Howard but at a particular group of press critics. For me, Nichols is not terribly important. (I think this is also how I would characterize his writing in general these days; I've admired some of his work but I think he's imbibed too much Internet fame and become too much the Atlantic contributor, both of which are intellectually harmful.) Rosen and Sullivan, on the other hand, are indeed, in my view, very bad press critics; they were bad even before Trump announced his first candidacy and, like many, got far worse after that.
I appreciate Howard's further elaborations in his post below. (And note the earlier post that elicited my sharp words about Rosen and Sullivan.) In attempting to think more specifically about his views, as opposed to those of the critics I was warning against, I imagine that, as is often the case, there are vast fields of agreement, and that identifying the precise points of disagreement is more valuable and difficult than anything that follows from that.
As far as that goes, I also deplore inaccuracy and imbalance; who doesn't? But I do disagree with his add-on reference to inaccuracy and imbalance "in the name of objectivity." This, too, is a popular view and, lest there be any mistake about it, was oft-heard back when Howard and I were in journalism school. But I take the view that 1) if the word "objectivity" became a cliche in journalism-talk, "there is no such thing as objectivity" (a phrase Howard did not utter, to be clear) has long since attained the same status; and 2) for journalists, writing in the heat of the moment, often unburdened by knowledge and increasingly unaided by good editors, shooting for objectivity is much better than discarding it because it is incapable of perfect attainment. I'm happy to agree to disagree about this or, as I said, to figure out exactly where and how much we disagree. I would simply point readers to Marty Baron's arguments on this point (there is a critical response from Wesley Lowery, who I would put generally in Rosen and Sullivan's company) and a related argument from Kwame Anthony Appiah about neutrality. Of course, used this way "objectivity" becomes more of a placeholder for a set of institutional goals and practices, and I would be fine with it if we used the term "professionalism," or "kumquats" for that matter, instead. I do not think rejecting objectivity does a better job than shooting for it when it comes to avoiding "narratives," both because they're in the nature of the game in journalism and more broadly because we all engage in narrative framing all the time. Nor does it do a better job of avoiding partisan narratives in particular.
I don't think the press is especially or uniquely susceptible to narratives pushed by Republicans as opposed to narratives pushed by Democrats, a phenomenon which happens with equal frequency because both parties are lousy with professional narrative-pushers. We did not live through two weeks of repetitive commentary about childless cat ladies because the press was independently pursuing an issue without worrying about accusations of bias. The chances that the quote was unearthed and pushed by someone other than a Democratic opposition researcher asymptotically approach zero, and the press ate it up. The press did not go all in on Biden's age because it was buying into a Republican-concocted narrative. It did so because 1) there was an actual issue there, 2) it was a hell of a story, 3) the debate gave the press, which knew it had done less reporting on that issue than it should have until recently, the hook to write about it, at which point it compensated or overcompensated for its prior quietude, and 4) Democrats who wanted Biden out of the race then pushed the story hard, and pushback, also from Democrats, created the sense of conflict that generates news coverage. Republicans may have been gleeful spectators, but that's all they were. (The press should refocus on Trump's age and fitness. But one should remember in fairness that it ran a slew of those stories between 2019 and 2021, often more poorly sourced and speculative than the Biden age stories.) And they wrote about Trump showing grit in the moments after being shot not because Republicans encouraged them to do so but because it was also a hell of a story. (They wrote a lot of nonsense after that, but I think most of the nonsense was self-generated, as well as being drawn from the press's current, poisonous, bottomless well of a reporting resource: Twitter.)
I also do not think that the approach pushed by critics of the old-fashioned press approach makes for more accuracy. I anything, I think it is even more likely to result in blatant partiality. (For some, the idea is that at least the partiality will be more visible in the reporting. Whether that's so or not, my concern is that the reporting will simply be worse--that it will result in some stories being poorly done and others being missed altogether.)
Finally, I see no evidence that the press's move, both a conscious one and a symptom of generational change, away from "objectivity" and toward something else after 2016, encouraged by folks such as Lowery, had much effect at all on the Trump presidency, the 2020 election, public opinion, or anything else. And in the long run, I doubt that the current sweetheart coverage it is now giving Harris, or the later negative narratives it will run with for some period of time as it overcompensates for its current puffery, or the more critical reporting it will devote to Trump and Vance to please subscribers (it turns out that big corporate advertisers did more to benefit journalism than to harm it; the subscriber model will kill journalism in the act of trying to save it) and out of "fear of accusations of bias," will have much effect either. The press, like the president who was at a standstill in the polls and leaking support in every direction, has done plenty of pushing of the "accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order" between 2016 and today. I tend to find many of the facts underlying that argument--although we should use the correct label: it's not an argument; it is, in fact, another narrative--largely accurate and newsworthy and therefore worthy of reporting. But simply trumpeting it, as critics like Sullivan thought and think we should at every opportunity, turns out to be an essentially empty exercise if the assumption is that simply repeating the phrase frequently will somehow change things. When Trump, or any candidate or public official, lies, the press should report that fact clearly. When he says something authoritarian, the press should likewise report it. But the idea that it makes a difference, to either change in the world or better journalism, whether its headline uses the word "authoritarian" or not, is a fallacy. Again, this is not what Howard wrote. But I think it's a fair characterization of what Rosen and Sullivan believe. I think they genuinely believe that putting the word in the headline will ward off authoritarianism, and that every time they are proved wrong they take this as evidence that the press should put the word in the headline even more often. In their Escher-like views and enthusiasm, they are impervious to refutation.
And, perhaps somewhat contra Howard, I think that belief, and the associated belief that the press must adopt a new approach, does indeed lead not to more accurate reporting but to ignoring or suppressing genuine news--it encourages "not reporting" as well as "accurately reporting." The press did adopt a new approach after 2016--not to the extent that Rosen or Sullivan wanted, and certainly not as much as Democratic operatives wanted, but the changes, and the pressure to do so from within and without, were obvious. The result was some missed or underplayed stories, some unforced errors, a momentary increase in subscribers, and nothing else. It turns out that the way to fight authoritarianism is to get out there and fight authoritarians in one's capacity as a citizen, not to change journalism (or art, or academic writing, or any other specialized, professional, or avocational activity).
Of course all of these things can be debated and much of the debate will turn on perspective. People who mistakenly think the press is, more or less literally, a wholly owned subsidiary of the Democratic Party will evaluate the evidence one way, and people who think (rather incredibly) that Maggie Haberman personally loves Donald Trump will evaluate it another way. I suspect, but not with complete certainty, that my disagreement with Howard can be put down to three things. 1) I think the critics he cites are awful. 2) I think we have different views of the role and value of "objectivity" in professional journalism. 3) I think we probably have different views about whether an "emergency" is a sound reason for changing fundamental practices in journalism or not. I may be wrong. And even if I'm right that leaves a lot of room for agreement on particular issues, as well as disagreement about how to characterize particular moves on the part of the press. But I think that's the core of where we part ways.
I should add that I think Howard's views are more popular than mine, and in many cases more popular within the press itself. I just think they are wrong, if not in every particular then in the general tendency. Our main social and political crisis is an institutional crisis. It does not demand wholesale change to, or abandonment of, those institutions. It demands a firm re-commitment to them, and to their standard practices. Although I see this as demand as requiring activity and energy, my position may also seem to put me on the side of staidness, conventionality, and quietism. I'm pretty content with that. In my view, the changes we have seen in the profession in the past few years, that a new generation of "journalists" (many of whom do more commentary than actual reporting) have demanded, and that critics like Rosen and Sullivan and others are urging, will do little to combat authoritarianism. I fear that instead, those changes will ultimately result in a further drop in public trust in journalism, a decrease in the quality of the work done by that institution, and the further and perhaps final financial collapse of the institutional press. I doubt all my fears will be realized. But I think the best way to forestall those eventualities is for the press to refocus on doing its job in a fairly conventional, old-fashioned, and admittedly imperfect and aspirational way.
Posted by Paul Horwitz on August 12, 2024 at 12:07 PM in Paul Horwitz | Permalink | Comments (0)
Not reporting v. accurately reporting
In citing Jay Rosen and Tom Nichols in this post, I expressed concern for the media's hyper-focus on certain narratives (Hillary's emails in 2016, Biden's age and mental acuity until a few weeks ago) to the exclusion of others. I have never advocated for not reporting what Trump says (and Nichols has been a big "show Trump in all his insanity" advocate) or for withholding negative stories about Biden, Harris, and other Democrats.
I have different criticisms of the media; Paul may disagree with these, as well, but they are different than what Rosen and Sullivan seem to have been pushing. I criticize inaccuracy and imbalance in the name of objectivity (and fear of accusations of bias). I criticize the media being worked. I criticize media ignoring or cleaning up Trump's incoherent ramblings. I criticize the media allowing a narrative to take hold--usually the one Republicans have pushed--and allowing that narrative to color what they publish and how they present it.
Posted by Howard Wasserman on August 12, 2024 at 08:40 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Sunday, August 11, 2024
"...disinclined to listen to media professors...."
I tend not to see eye to eye with my friend and co-blogger Howard on press issues, perhaps because we went to competing journalism schools, both of which, as journalism programs go, are very fine. (Mine was better. At least it used to be. Now that it offers master's degrees and doctorates instead of overpriced but excellent meat-and-potatoes training, it may be much worse.) That's okay! Marketplace of ideas and all that. But because he recently cited Jay Rosen, a non-journalist press critic who has had the misfortune to become a popular online commentator (online popularity being a recipe for ego and hubris), I thought I would share this recent Substack piece, by Mike Pesca, an actual journalist. Examining recent events, the piece quite rightly argues that Rosen is--once again--wrong in his position on how the press should cover the election and specifically former president Trump's candidacy, and likely to remain wrong by retaining and repeating the same mistaken position, no matter the evidence and without much sign of the capacity to acknowledge errors or reexamine his positions. Pesca also notes the endless wrongness of Margaret Sullivan, formerly a high-ranking journalist before becoming the last and worst of the New York Times's public editors; she has since enjoyed sinecures at the Washington Post and the Guardian and also, alas, teaches at my alma mater journalism school.
Press criticism can be a valuable and necessary thing. (Among other things, it is useful in contextualizing the increasingly negative view the Supreme Court may hold of the press and why there may be actual reasons that its members, along with large numbers of the public, are more likely today than in past years to view it "in a negative light.") On the other hand, as Thor would say, as press critics Rosen and Sullivan are just the worst. (Tom Nichols, also mentioned by Wasserman, has been an interesting writer from time to time but is not much better.) As Pesca notes, most sensible working journalists will simply ignore them--Rosen because he's wrong and not a journalist and Sullivan because, well, because she's awful. This is an excellent approach for non-journalists as well.
Posted by Paul Horwitz on August 11, 2024 at 06:02 PM in Paul Horwitz | Permalink | Comments (0)
Presidential Elector Math
Here's a question that I've been pondering. Suppose that two presidential electors turn out to be ineligible under the rules of Article II but this fact is unknown until after they vote. Would the winner then require only 269 votes or 270? In other words, do you calculate the majority based on the total number of electors or the total number of eligible electors? There is no relevant precedent, though the issue almost came up in 1876.
The text of the Twelfth Amendment says that the winner is the person who receives "a majority of the whole number of Electors appointed." That probably means that it doesn't matter if the people appointed are eligible to be appointed. But you could say that the appointment of an ineligible person is void if the person is not replaced prior to voting. (If an elector died right before the electors vote, an alternate presumably must be picked for a state to receive its full share of votes.)
Posted by Gerard Magliocca on August 11, 2024 at 05:14 PM | Permalink | Comments (0)
Jordan Chiles and the Jurisprudence of Sport
Jamie Fox (Stetson) offers an interesting Twitter thread on the brouhaha over the bronze medal in the women's floor exercise illustrating the jurisprudence of sport--the conflict (without a clear correct answer) among finality, substantive fairness, procedural fairness, formalism, justice, etc. He offers the thread to incoming law students to give them a sense of what they are about to encounter (and that it is not necessarily over the day's great moral dilemmas).
As things stand, the USOC plans to appeal the Court of Arbitration for Sport ruling, although it is not clear what higher court would hear such an appeal--whether Switzerland's highest court or the European Court of Human Rights. And why should the ECHR care or have anything to say about the judging in a gymnastics competition?
One remedial piece to this, according to this report: In its appeal, Romania asked that the IOC award multiple medals--to give Ana Barbosu what she earned in the competition without humiliating Chiles by making her return the medal. This is an attempt at equity. But the case is complicated and I can see why, given its rules, IOC and FIG rejected it (not agreeing--just understanding). FIG sets its rules to avoid multiple medals, except as a last resort; judges use the execution score and then the difficulty score as tie-breakers. They award multiple medals only in the (unlikely) event of deadlock in all three scores. Barbosu and Romanian teammate Sabrina Maneca-Voinea had identical total scores, but Barbosu initially won bronze on the execution tiebreak. Moreover, this is not a simple case of flipping third and fourth. Chiles finished fifth in the initial scoring, below Barbosu and Maneca-Voinea--the judges' inquiry giving her an additional .1 point jumped her into third andvacating that decision removed that .1 and dropped her back to fifth. To give Barbosu a medal and allow Chiles to keep her initial medal requires that Maneca-Voinea also receive a medal. Romanian proposed doing that, likely because the additional medal would go to a Romanian. But I can see FIG not wanting to award three bronzes.
Posted by Howard Wasserman on August 11, 2024 at 03:40 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Saturday, August 10, 2024
Saturday Music Post - Subterranean Homesick Blues
Released in 1965, "Subterranean Homesick Blues" was Bob Dylan's first top-40 hit. It was also the lead cut on his fifth album, "Bringing It All Back Home," which featured electric tracks on one side and folk-acoustic cuts on the other side. I was a 16-year old high school senior at the time, writing my honors English term paper on Dylan's lyrics -- for which I had to get the teacher's special permission because such a thing had never been done -- and the fifth album really caused me a problem. Not only was it half-electric, it had no political protest songs, other than the implicit rebellion against the bourgeois world. I cannot remember if I recognized the similarity to Chuck Berry's "Too Much Monkey Business," which Dylan acknowledged decades later, but nobody thought anything about borrowing tunes back then. I am pretty sure that I mentioned the obvious Kerouac influence.
Don't miss Allen Ginsberg in a tallit and the Ginsberg-inflected clips at the bottom of the post.
Dylan also pioneered the music video with the first clip on today's post at The Faculty Lounge.
Posted by Steve Lubet on August 10, 2024 at 05:26 AM | Permalink | Comments (0)