Monday, February 26, 2024

The Sense of 'Crisis' in "The Crisis in Teaching Constitutional Law"

I also have some thoughts on the op-ed Gerard discusses below. The op-ed, by Jesse Wegman, is titled "The Crisis in Teaching Constitutional Law." I think the article manages to raise some interesting issues. It is, however, mistaken in one crucial respect--in calling what it describes a "crisis," a new and sudden emergency, rather than a recurring issue in constitutional law and in the academy's relationship to the courts--and questionable in others, and it buries some of its interesting points because of that mistake. There are also posts on the subject by Orin and Will at the Volokh blog; I haven't read Will's post yet, but have read Orin's and find some points of overlap.

In writing this, it struck me at some point that I hadn't even got around to the question whether there is, you know, a "crisis in teaching constitutional law." The answer is no: it's just as easy or hard to teach constitutional law as ever. But that's a mundane practical question. The real points of interest in the piece lie elsewhere. So, for the most part, I'll leave that for a second post. 

So what is good or useful about Wegman's article? Perhaps most of all, it's useful in suggesting, not a problem arising from the Court as such, but a problem arising from generational change, and from changing views on institutions and institutionalism. On the generational front, it notes that we are dealing with at least the third generation of fallout from attachment to the Warren Court. Even if its first-generation advocates have mostly left the stage, the senior establishment still consists of people who were taught by those people, as Pam Karlan notes in the story--and folks like Karlan in turn taught most members of what is now the mid-career academic establishment in constitutional law.

The "valorization" of that Court, and of the role of judges as "heroes who would save us all," remains a powerful prevailing mythos. It is certainly evident in Wegman's own romantic-yet-embittered tone here (although his own professor was at the time leading the charge for popular constitutionalism.) Those teachers didn't just learn this faith once they entered law school. They learned it from a fairly narrow range of media that they would have been exposed to before they became law students, in an era when Anthony Lewis wasn't merely one of hundreds of people commenting on the Court, but rather its primary spokesman. Those media helped feed the mythos.

That time has long since passed. The particular stories and legends that were imbibed by my generation and those before mine are as fresh and relevant to the current generation of students as my classroom references to Kiki Dee or Conrad Bain.

In addition, as Wegman writes, there is a decline in institutionalism and institutional trust. He pins this on events like the hardball refusal to seat a replacement for Justice Ginsburg during the last year of the Obama administration. But that's both unpersuasive and insufficient. The number of institutions that now face significant distrust is far larger. The list ranges across civil society and includes institutions both public and private.

More fundamentally, the issue doesn't just involve distrust in particular institutions, for particular reasons. It involves a broader skepticism of or simple indifference towards the idea of institutions as vital but limited-purpose entities. It makes it difficult to teach about the Supreme Court--but also to be a journalism professor (an area that's been the subject of even more rapid and sustained change, and a more vertiginous decline in public trust, than anything in constitutional law), a medical school professor, and so on. And that distrust is either caused or exacerbated by things like the loss in assumptions about the good faith of one's interlocutors noted in the piece by Michael McConnell, who continues, "I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed." It's in this sense, and not in any sense tied more directly and causally to the current Court, that it makes a difference if people no longer believe that, in Wegman's words, "the Supreme Court is a legitimate institution of governance." People can disdain the current Court and still believe in the larger premise that the Court is important and legitimate as an institution; I suspect that's true for most constitutional law professors, histrionics aside. The problem is that the premise itself holds no interest, no conjuring power, for a growing number of people.   

Wegman connects this point to a quote from Mark Graber, who says, "We're witnessing a transformation in the New Deal consensus" across both left and right. I'm not sure these two things are exactly the same. But--without straying too far into Moyn or Deneen territory--it does seem fairly arguable that teaching constitutional law, in the form in which it has been handed down to us since the postwar era (with hugely important disruptions along the way), or having faith in the Court, among other institutions, depends on a set of assumptions that are consistent with postwar liberalism: its values, its proceduralism, and its reliance on a host of presumptively trusted and valued public and private institutions. Remove faith in some of these things, and the whole edifice becomes unsteady.

"Faith" does seem like the right word here, incidentally. For those who are keen on the "liberalism as religion" argument, or who like to quote the closing lines of Roberto Unger's classic Critical Legal Studies book, the quote from Prof. Melissa Murray in the story's closing lines will stand out: "You're not just ministering to [law students], you're also trying to restore your own faith....This is a place for institutionalists. Deep down they want to believe." She is surely right that law schools are places for institutionalists--at least so far as faculty are concerned. The possibility that our students no longer "want to believe" in that institutionalist project--and that others, of different generations, share both that lack of faith and that lack of desire for faith--is not something she confronts here. Nor does Wegman's story address it. But we might want to. 

These all strike me as interesting points. What is not so interesting is the framework for the story in which they can be found. That framework is that there is a thing called "constitutional law," that it is both relatively stable and closely linked to the Supreme Court and happens, somewhat ironically, to resemble the Court's Burger- and Rehnquist-era efforts to turn the Warren Court's effusions into a more routinized, formalized test-based jurisprudence whose formalization makes things look less like "politics by other means"--and that all of this has been blown apart in a flash, making it impossible to "figure out how any of this makes sense" and thus to teach it or respect it. 

The latter point falls under the "not new" category. As long as we're referencing the era of the great Kiki Dee, take a look at Isidore Silver's article The Warren Court Critics: Where Are They Now That We Need Them?, published in the same year as Dee's greatest triumph. It provides a useful rundown of some of the standard plaints of leading Warren Court critics, many of which find echoes in Wegman's article. Or try Skelly Wright's description of Alexander Bickel and other critics' verdict on that Court's decisions: "over-interventionist in purpose, sloppy in reasoning, and mistaken in result." This is not the first time law professors have confronted a host of new decisions and asked: "How do I teach this? What does it even mean? In what sense is it even constitutional law as I recognize it?"

Nor, to quote Mark Tushnet and Timothy Lynch's account of the Harvard Law Review Forewords, is this the first time that critics of shoddy craft or unprincipled work on the Court have warned that such decisions would place the Court "in jeopardy of acting without legitimacy or moral authority." Tushnet and Lynch note that "these notions appear recurrently in the legal process Forewords," before going on to note that those scholars' "hegemony [began] to crack when its adherents [saw] that their theory [had] become less relevant to the real world." Legal Process had a resurgence in popularity after Eskridge and Frickey published the famous Hart & Sacks materials and helped revive interest in them. Perhaps what we are seeing today is a "crisis" for both the generation of law professors who came to law school when you could actually buy a hardbound version of Hart & Sacks and the generation that saw it to publication. 

The former point--that there is a problem for constitutional law teachers because the stable framework has vanished--I'll take up in a separate post. 

Posted by Paul Horwitz on February 26, 2024 at 11:14 PM in Paul Horwitz | Permalink | Comments (0)

The medical gaslighting of long COVID patients could be nearing its end 

My new essay in The Hill is about some encouraging developments for long Covid and ME/CFS patients, as both Congress and the medical profession have become less skeptical and more attentive to the conditions. Here is the gist:

The medical gaslighting of long COVID patients could be nearing its end 


Presiding last month at a hearing of the Senate Committee on Health, Education, Labor and Pensions, Sen. Bernie Sanders (I-Vt.), addressed the many issues faced by patients suffering from long COVID, an often debilitating condition that can persist for months or years following a SARS-CoV-2 infection. 

In addition to inadequate research funding and the difficulty of accessing quality care, Sanders observed that “far too many patients have struggled to get their symptoms taken seriously” because “far too many medical professionals have either dismissed or misdiagnosed their serious health problems.”

While some physicians did grasp the problems presented by long COVID, many others were dismissive and disbelieving. 

In a Wall Street Journal opinion piece, a young psychiatrist ridiculed the condition as “largely an invention of vocal patient activist groups,” insisting instead that it was a “psychosomatic-symptom disorder.” 

The disease once known as chronic fatigue syndrome, and now generally called myalgic encephalomyelitis, or ME/CFS, with devastating symptoms strikingly similar to long COVID, was investigated by the Centers for Disease Control and Prevention in the mid-1980s, and almost immediately discounted as “yuppie flu” and even a “fashionable form of hypochondria.”

Just last week, the National Institute of Health published the encouraging results of a seven-year study of ME/CFS. The study determined that the condition is not a psychiatric disorder, but instead there are “clear biological markers” of the disease,

Although there is still no cure for long COVID or ME/CFS, it has already been a good year for patients of these chronic diseases, with deep dives into both conditions. The U.S. Senate appears ready to increase research funding and accountability for long COVID, and the NIH appears to be on a path to untangling the nature of ME/CFS. 

You can read the entire essay in The Hill.

Posted by Steve Lubet on February 26, 2024 at 12:08 PM | Permalink | Comments (1)

The Supreme Court Never Was What It Was

Today's NYT article on the crisis in constitutional law teaching is a classic example of the "back in the good old days" fallacy. Back in the good old days, the Supreme Court rendered principled decisions in constitutional cases. The Justices were not making political judgments. They were not imposing their own policy views. They were careful and thoughtful. Constitutional law was an internally consistent set of rules and principle driven by logic and reasoned debate.

When was this golden age? I have no idea. Was it when Learned Hand called the Justices the "9 fools in Washington?" Was it when Willam Howard Taft was Solicitor General and called them "a bunch of mummies?" I could go on and on. The common law process and Article V amendments can give us a more coherent framework over time, but in any given period it's a Jekyll and Hyde situation.

Take the Section 3 case. The way I've been discussing Trump v. Anderson with my students is to say that the Court will probably rule for Trump in some fashion. Why is that? What are the alternative rationales? It's easy for them to see that politics plays an important role in that case. Then you can feed that back into older decisions when the politics are less familiar now (like Marbury).

It's a great time to teach constitutional law. Or at least as great as any other time.


Posted by Gerard Magliocca on February 26, 2024 at 08:29 AM | Permalink | Comments (0)

Sunday, February 25, 2024

"...Growing Interest in..."

The Atlantic, which, with Slate rendered more or less irrelevant, retains its almost 170-year title as the Mecca of American Midcult, has this interesting story titled, "I Went to a Rave With the 46-Year-Old Millionaire Who Claims to Have the Body of a Teenager." (For the sake of clarity: He claims that his body is the equivalent of a teenager's, not that he has failed to dispose of a teenager's body.) "Interesting" is a strong claim, and words in the headline like "millionaire" and "rave" suggest that a better word would be "quaint," in an 80s-in-"Madchester" kind of way. The subject--yet another person who a) comes from Silicon Valley, b) would prefer not to die, and c) would very much like to sell you something--is not at all interesting. But the story is interesting.    

Specifically, the obligatory passage in which the piece attempts to rise above the noise of the crowd, and to justify its own existence and significance, runs:

Johnson told me wants to create a Don’t Die nation of 20 million people. This may sound unhinged, but people are listening. Johnson’s societal ambition echoes that of growing numbers of tech executives and venture capitalists trying to build alternative cities and states. His quest for immortality has been the subject of features and interviews in Time, Bloomberg, Vice, The New York Times, Trevor Noah’s new podcast, and more over the past year or so. The Blueprint Discord channel has more than 14,000 members, whom he calls the “Don’t Die Army.” In addition to the meetups Johnson hosted in New York on Saturday, there have been more than 200 Blueprint gatherings in 75 countries this year. Some 5,000 people recently enrolled in a self-experimentation study to see how well the Blueprint protocol works on a broader population.

Note the actual level of correspondence between the phrase "people are listening" and the evidence given. The largest number given is 14,000--the number of people on Johnson's Discord server. Of course, 14,000 ain't nothing. As Discord servers go, it's smaller than US Furries (19,000 members) and much smaller than virtually any Discord server related to sex or gaming, but larger than the membership roster of the Smooth Jazz Chill Out Lounge server. In any event, ultimately the evidence for "people are listening," which is a long way from people actually being convinced, or serious, or even particularly interested, consists of a) a small number of Discord server members, which already places them in a specialized population; b) a smaller number of people willing to "self-experiment," which probably overlaps with the number of Discord members; and--and surely most importantly--c) some number of reporters or editors for a small number of similar chattering-class-servicing publications, all of whom are pursuing the same standard-issue feature subjects, and all of whom would prefer that those be roughly the same subjects. (Being first to the subject is good if others soon follow; being alone in finding a subject interesting or newsworthy weakens the cash value of your work and opens you up to claims of unreliable eccentricity.)

References to "growing numbers" and "people" notwithstanding, then, the justification paragraph here does not really support the claim that the subject of the story is significant or that it will be of interest to many people. Indeed, it may well be of no interest to the vast majority of people. Rather, it suggests that the right sorts of people, people occupying roughly the same cultural milieu either directly (Silicon Valley) or indirectly (people willing to read features about rich tech culture in the Atlantic), are willing to treat it as interesting. The story could have said that to justify itself, of course. But apparently that sort of justification would be considered...what, exactly? Insufficient? Inappropriate? Déclassé? Too on-the-nose, too self-revealing? Nor, apparently, is it sufficient to offer no justification whatsoever, other than that one person found it interesting enough to write about. So one must have the usual recourse to flimsy numbers, vague claims of growth, and invocations of consensus on the part of similarly situated culture-and-status markers that the subject is important and the interest justified.

Nothing unusual here, of course. This sort of thing is the vast majority of what "we" read. Perhaps this serves as a reminder to be skeptical of the importance of such stories, even or especially if they engage in the usual exertions to demonstrate their own importance. It certainly serves as a reminder that how these stories justify their importance is usually fairly telling of their narrow class and cultural perspective, and of the narrow nature of the group whose interest counts to certify the story as important. And it leaves open the possibility that the vast majority of people out there would find the same story entirely unimportant, might find whatever is on offer there appalling if they did take any notice of it, and just might be able to identify other issues of vastly greater urgency and importance to them and their lives.

I offer this as a passing observation. It is wholly--well, perhaps not wholly--unrelated to the fact that it is law review submission season; that a great many papers offer almost exactly the same justifications for their own existence and for the importance of some particular subject; that these authors too would like to be first but definitely not alone; and that these authors rely on the knowledge or hope that the people doing the selecting will, in turn, fall within the same narrow class and cultural spectrum, and thus either agree with or gloss lightly over those justifications. 

Posted by Paul Horwitz on February 25, 2024 at 04:46 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, February 24, 2024

3rd Annual Law vs. Antisemitism Conference, Feb. 25-26 at FIU College of Law

Anti Semitism Conference poster_R4The 3rd Annual Law vs. Antisemitism Conference begins tomorrow and runs through Monday at FIU College of Law. We have more than 100 registrants from all disciplines and all over the country.

The program includes keynote speeches by Marc Stern of the AJC and Rabbi David Saperstein, formerly of the Union for Reform Judaism; a screening of the film Recipe for Change: Standing up to Antisemitism with producer Todd Shotz; and a Sunday evening reception at the Jewish Museum of Florida-FIU. And, of course, good food.

All panels and presentations will be livestreamed, for those who cannot make it to FIU. There is a link listed for each panel.

Posted by Howard Wasserman on February 24, 2024 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday Music Post - Old Whine

There was a time in the early sixties when some popular male vocalists almost seemed to whine their lyrics, which were sometimes, though not always, whiney as well. Maybe they (or their producers) were trying to distinguish themselves from contemporaries such as Elvis Presley, Chuck Berry, and Ray Charles. Or maybe they thought they were channeling Frankie Valli (they weren't).  I have no idea how or why the fad began, or exactly when it ended (which might have had something to do with the Beatles and the Stones, or Dylan). Some of the material was still really good; some really isn't. Once you've heard it, the vocal style is, well, memorable.

The clips are at The Faculty Lounge.


Posted by Steve Lubet on February 24, 2024 at 06:22 AM | Permalink | Comments (0)

Friday, February 23, 2024

January 3rd Comes Before January 6th

That sinking feeling you sense is the growing realization that the Supreme Court's opinion in Trump v. Anderson will probably not resolve Donald Trump's eligibility to be President. Instead, the Court is likely to say only that states cannot enforce Section 3 against a presidential candidate (at least before the election). This means that Trump's eligibility can be raised in the Joint Session of Congress on 1/6/25. And there is a decent chance that Democrats will control the next House of Representatives, simply because the numbers are so close now. If Democrats also hold the Senate (whatever likelihood you give that), then we could face a constitutional implosion.

But that's only the beginning. Before the Joint Session meets, the new Congress must be organized. Democrats in both Houses might raise Section 3 challenges against Republican members-elect. This could be done as a prelude to a Joint Session challenge, but another factor is that such challenges could increase their margin in the Joint Session. A challenged member cannot vote until the challenge is resolved. Is that likely within three days? Probably not.

There are some workarounds to these problems, but there will be time to consider them after we get the Court's opinion. I just hope that the Court is thinking what might happen if Trump wins and if the merits of the Section 3 challenge go unaddressed now.


Posted by Gerard Magliocca on February 23, 2024 at 09:53 PM | Permalink | Comments (0)

Wednesday, February 21, 2024

Take Back the Court on LePage v. Center for Reproductive Medicine

This essay is by Sarah Lipton-Lubet and Take Back the Court, reposted here with permission:

Another Shitty Day to be a Woman in America

The move from Dobbs to banning IVF was faster than even I imagined.

By Sarah Lipton-Lubet and Take Back the Court

We’ve all seen how the overturning of Roe has empowered radical judges to act out their reactionary fantasies as if they were writing dystopian fiction rather than adjudicating actual cases with incredibly serious consequences for millions of people.

Last week, the Alabama Supreme Court took the (latest) prize.

That court held – 7 to 2 – that embryos frozen in IVF procedures are “children” under state law. The court held that therefore children and unborn children – including frozen embryos (which are actually blastocysts, a pre-embryonic phase), or in the court’s parlance “extrauterine children” – are protected “equally” under the state’s Wrongful Death of a Minor law, which allows civil damages. 

The court based this conclusion on the 1872 Wrongful Death statute, and a 2018 ballot measure that amended the state constitution to “recognize and support the sanctity of unborn life,” and said that the amendment requires the court to “construe ambiguous statutes in a way that ‘protect[s] … the rights of the unborn child’ equally with the rights of born children.”

In its opinion, the court stated that “[u]nborn children are "children" under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics.” And the court went out of its way to hypothesize additional future implications. I have to include this excerpt in full, partially to remind myself that it’s actually real:

“For instance, one latent implication of the defendants' position [that frozen blastocysts aren’t the same as actual children] -- though not one that the defendants seem to have anticipated -- is that, under the defendants' test, even a full-term infant or toddler conceived through IVF and gestated to term in an in vitro environment would not qualify as a "child" or "person," because such a child would both be (1) "unborn" (having never been delivered from a biological womb) and (2) not "in utero." And if such children “were not legal "children" or "persons," then their lives would be unprotected by Alabama law. The plaintiffs argue that this sort of unequal treatment would offend the Equal Protection Clause of the 14th Amendment to the United States Constitution, which prohibits states from withholding legal protection from people based on immutable features of their birth or ancestry. These are weighty concerns.”

Continue reading "Take Back the Court on LePage v. Center for Reproductive Medicine"

Posted by Steve Lubet on February 21, 2024 at 08:28 PM | Permalink | Comments (0)

Tuesday, February 20, 2024

Civil Rights Museum, James Meredith Statue, Blues Revival

Linda and I just got back from our first road trip in 18 years. Between us, we could handle driving about 300 miles/day. Memphis is under 600 miles from Evanston, so we did it with an overnight. 

The main purpose for our trip was a visit to the National Civil Rights Museum in Memphis, which neither of us had seen. The museum, which is part of the Smithsonian network, encompasses parts of the Lorraine Motel where Martin Luther King was assassinated, including the room where he spent the last night of his life. It would be deeply moving for anyone, but especially for those of a certain age who remember the events as they happened.

One of the exhibits is burned bus (although not the bus) from Anniston, Alabama, where a mob attacked Freedom Riders in 1961, who had to escape through windows. There were equally emotional moments at virtually every exhibit. There is also a room about the murders of James Chaney, Andrew Goodman, and Michael Schwerner in 1964. It is terrifying to remember how long and violently white southerners resisted voting rights and integration, with so many beatings and murders.

We also visited several music museums, of which there are many in Memphis. Most interesting was the Stax Museum, telling the story of Stax Records, which existed only from 1961-75 (with other iterations preceding and later revived). Operating out of a former movie theater, Stax was famous for the “Memphis Sound” of stars like Otis Redding, Booker T and the MGs, Rufus and Carla Thomas, Eddie Floyd, Sam and Dave, Isaac Hayes and others. An interesting subtext in several exhibits was the unspoken disdain for Motown Records, because of that label’s more “mainstream” sound.

Stax was also notable for being 50% woman owned, and for its integrated house band. The huge museum (in the old movie theater) was almost empty, with only the two of us and two others.

In contrast, the much smaller Sun Studio was packed. They run 7 tours a day of 30 people (that’s over 200, for those who are counting), and we were told it is always full. Our tour included a bus load of tourists from Poland. I get that Elvis is the biggest name in Memphis music (we had no interest in Graceland), along with Johnny Cash, but it was hard to ignore the disparity between overwhelming interest in the predominantly white studio, versus the nearly empty Black studio.

The Civil Rights Museum was well attended, including many groups of local school children. There were 10 or 12 busses lined up outside as we were leaving (we were there at opening, of course). So that was good to see.

Our next stop was Oxford, Mississippi, to see the James Meredith statue at Ole Miss. For those who may not recall, Meredith integrated the University of Mississippi in 1962, when he was a 29-year old Air Force veteran. Eight years after Brown v. Board of Education, the university had still never admitted an African American.

Continue reading "Civil Rights Museum, James Meredith Statue, Blues Revival"

Posted by Steve Lubet on February 20, 2024 at 06:37 PM | Permalink | Comments (0)

JOTWELL: Thomas on Frampton on jury integration

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Thomas Frampton, The First Black Jurors and the Integration of the American Jury, ___ N.Y.U. L. Rev. ___ (forthcoming 2024).

Posted by Howard Wasserman on February 20, 2024 at 02:42 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Monday, February 19, 2024

Calabresi and Kerr on Trump's "Victimless Crimes"

My friend and colleague Steve Calabresi has posted a long essay at The Volokh Conspiracy titled "President Trump's Kafkaesque Civil Trial in New York State." Among his other condemnations of what he calls a "Stalinist nightmare in New York State," Calabresi writes, "not a single bank claimed that it had been defrauded by Trump in the loans it had made to him.  This is truly a victimless crime."

Orin Kerr disagrees, also at the Volokh Conspiracy, in a post titled "Thoughts on Judge Engoron's Opinion, A Response to Calabresi." According to Kerr, it does not matter whether the loans, obtained via Trump's lies, were "successfully repaid." Using the analogy of drunk driving prosecutions, Kerr points out that it doesn't matter "if the person who drove drunk made it home safely on that particular trip" because "it's the established risk of harm, not actual harm" that constitutes the offense."

I agree with Kerr, but I think there is a better analogy. Everyone knows that drunk driving is wrong and dangerous, but that is not so obvious  -- or so Trump argued, and Calabresi agreed -- about inflating one's net worth on a loan application.

So consider Model Rule of Professional Conduct 1.15, which prohibits lawyers from depositing clients' funds in their office operating accounts. The offense of "comingling" occurs when the lawyer fails to keep clients' property "separate from the lawyer's own property." Clients' money must always be kept in "one or more trust accounts."

It makes no difference if the clients' are eventually paid or made whole. Lawyers can be sanctioned, and some have been disbarred, for repeated comingling -- in other words, endangering -- clients' funds, even when the clients have suffered no financial loss. There is nothing Kafkaesque or Stalinist about it.

Posted by Steve Lubet on February 19, 2024 at 05:40 PM | Permalink | Comments (5)

Saturday, February 17, 2024

Passing the batons: Reform and Reckoning in 2024 Legal Education

To say we are experiencing "a moment" risks cliche.  But as to the potential for reform in the legal education space, there may in fact be a moment, for two colliding reasons:  First, the problems that have long plagued legal education are not fundamentally abating, and, indeed, some are worsening.  The annus horribilis (plus) of Covid may have masked persistent problems that had little to do with the pandemic as such.  Now a couple years past the worst of that crisis, we might return to what we saw simmering and, in some ways, boiling over.  The American model and practice of legal education disserves renewed scrutiny.  Problems need to be solved for the betterment of our enterprise, of our profession.  Second, it just so happens that there is a very large turnover in leadership at the organizations that have long been the primary regulators and engines of influence.  To name names, Bill Adams will step down as ABA Legal Ed Section managing director at the end of this academic year, and will be replaced by Dean Jennifer Rosato Perea.  Kellye Testy will leave LSAC to become the next executive director of the AALS.  Kellye will be replaced, although I have no idea at all about the identity of her replacement.  One other interesting fact along these same lines:  The incoming chair of the ABA Legal Ed council is a well-known maverick and fearless innovator, Bridget McCormack, the former chief justice of the Michigan Supreme Court.  And so we are at one of those rare moments where new leadership might steer this big, bulky legal ed ship in a new direction.

I intend this as not merely a gesture of hope, but one of urgency and imperative.  Among the issues that call for close attention and action from these able new leaders:

1) Resolving an issue that is currently before the ABA Section council and has been a hornet's nest for the past several years:  What can law schools do by way of admissions testing?  In 2021, the ABA gave its stamp of approval for the use of the GRE as a valid & reliable admissions test.  Before and after that, the Section twice proposed the removal of Standard 503's requirement of a test, but was met by fierce resistance within the ABA, stoked by LSAC naturally, and backed away.  And this month the council considers whether to approve the use of a novel new initiative -- called JD-Next (on whose academic  advisory board I sit as a volunteer) -- as a possible supplement or replacement for the two tests, the LSAT and GRE, which have previously been approved.  JD-Next has provisional approval under a variance; the question is whether law schools will be able to use it at their discretion going forward. (I am likely to post separately about JD-Next, and so I won't get into the arguments' weeds now).  The matter of admissions testing, and holistic admissions in general, has an urgency, of course, as a result of the Supreme Court's recent affirmative actions decisions, not to mention the continuing struggle to land on systems that reveal student ability that will enable them to succeed in law school;

2) Confronting the issue of cost and student debt.  These problems have not gone away; rather, they seem to be worsening.  Tuition rates continue to climb; university bailouts that might have cushioned somewhat the impact on schools looking to furnish adequate financial aid have basically ended; and the post-Covid legal job market (even including Biglaw) struggles and strains to furnish positions and remuneration sufficient to keep most graduates from leaving law school with crushing debt.  This is, not to be glib about it, a collective action problem.  Law schools will likely fix this in their own backyards only when the market pushes them to do so.  That said, the relevant legal regulatory/influence organizations can implement policies, and decline to implement others, that alleviate some of the cost drivers.  In short, they can help constructively to address these economic problems, even if they cannot (and will not) solve them for the schools themselves;

3) Related to the economics of legal education, but presenting itself as a more complicated "wicked problem," we have a serious access to justice problem in the U.S.  The vast majority of ordinary citizens cannot afford a lawyer; and so they are overmatched in matters close to the bone of their lives, including consumer debt, housing, and family law.  As a nation, we may be "overlawyered," but yet the A2J problem persists.  We must think creatively about structures and practices in legal education worsen this problem; and we should likewise think about how best to inculcate in our students lessons and strategies that will equip them to address the A2J crisis after graduation (even if for some, they will tackle these issues indirectly).  Happily, the new leadership of these legal organizations are all individuals who have made demonstrable contributions to these issues in their careers.  And so there is a basis to be hopeful that they will see this as within the scope of their agenda and objectives;

4) In an ambient sense, we should also see the reckoning in legal education as about our commitment to innovation -- in our educational structures, our pedagogy, how we configure our worklife as teachers, scholars, and administrators -- and our taste for creative problem-solving.  While these are individual choices (as professors) and institutional choices (as law schools), they can be mobilized and incentivized in the right general direction by leadership in legal organizations such as the ABA (both parts, the Section and the "big'" ABA), AALS,  LSAC, AccessLex, NCBE (and other orgs).  Will this transition in leadership bring a temperament for innovation, for bold ideas, for public-regarding, rather than private-interested reform?  Will the ghost of Daniel Burnham influence these leaders?  A commenter on a twitter/X post this morning (Patrick Lamb of ElevateLaw) wryly commented "the guild standing strong against innovation is so certain Vegas bookmakers won't take bets on it."  Nicely said, but I hope he's wrong.  

These leaders can show that they understand the reckoning we are witnessing and the reform that is necessary by coming strong and hard out of the box.  Let's look at what they do, not just what they say, and work with them to improve our collective legal ed welfare.



Posted by Dan Rodriguez on February 17, 2024 at 12:01 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (15)

Notre Dame Law Review Symposia 2024-25 Call for Proposals

The Notre Dame Law Review is seeking and accepting proposals for symposia to appear in its 100th anniversary volume:


Posted by Rick Garnett on February 17, 2024 at 10:12 AM | Permalink | Comments (1)

Saturday Music Post - Rock Me Baby

"Rock Me Baby" is one of the most instantly recognized blues numbers, made famous by B.B. King and Muddy Waters, and covered by dozens or even hundreds of artists. As with so many twelve-bar blues numbers, the lyrics are reminiscent of earlier songs, including Muddy Waters's own "All Night Long" and Big Bill Broonzy's "Rockin' Chair Blues."

(I queue the posts up about six months in advance, and I don’t look ahead once they are posted. So I was surprised to see BB King when I woke up in Memphis. Total coincidence.)

The clips are at The Faculty Lounge.

Posted by Steve Lubet on February 17, 2024 at 04:27 AM | Permalink | Comments (0)

Thursday, February 15, 2024

Confusion About Dates

Here's a technical issue that I often encounter about the dates of nineteenth-century cases. When one of my articles is being cite-checked, a student editor will sometimes look at a Supreme Court case from, say the 1869 Term and conclude that the case was decided in 1869. I then gently point out that by a certain point Supreme Court terms wrapped around two calendar years, so an 1869 Term case could be an 1870 case. Old Supreme Court reports, though, do not contain the date of decision, so it's an understandable mistake.

Circuit cases present a different problem. Take Corfield v. Cornell. Sometimes the case is cited as decided in 1823. Sometimes the cite says 1825. Which is correct? The answer is 1825. Why, then, do some cites say 1823? Because that's when the case was tried. The final decision came out two years later because there was an intervening Supreme Court decision--Gibbons v. Ogden--and a reargument. The practice in the 1820s--or for Justice Bushrod Washington's reports-- was to date the circuit case to its inception rather than its conclusion.

Now consider another example. The proceedings in Jefferson Davis's treason case ended in 1868 (or 1869, if you include the formal dismissal of the case after his pardon). But the circuit report says 1871. Why is that? I'm less certain, frankly, but this does confuse people. How could the case be from 1871 if Davis got a pardon in 1868? 

The bottom line is that you need to pay careful attention to case dates from this era.

Posted by Gerard Magliocca on February 15, 2024 at 01:20 PM | Permalink | Comments (0)

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?

Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit and favorable termination

I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.

The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.

Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, February 14, 2024

"Yes Minister" on Precedent

Sir Humphrey Appleby:
Minister, if you block honours pending economies, you might create a dangerous precedent.

James Hacker:
You mean that if we do the right thing this time, we might have to do the right thing again next time. It seems on that philosophy, nothing would ever get done at all.

Sir Humphrey Appleby:
On the contrary, many, many things must be done...

Sir Humphrey Appleby, James Hacker:
[together] but nothing must be done for the first time.

Posted by Gerard Magliocca on February 14, 2024 at 08:24 AM | Permalink | Comments (0)

Monday, February 12, 2024

Columbia Law School Denied Recognition to Law Students Against Antiemitism

My essay about it is posted at The Hill. Here is how it begins:

When Marie-Alice Legrande, who is not Jewish, and several friends decided to form Law Students Against Antisemitism, they expected to fill an obvious need, bringing Jewish and non-Jewish students together to “raise awareness and educate about both historical and contemporary antisemitism.” 

They had no idea that their proposal would draw furious opposition from people identifying themselves as “Concerned Jewish Students at CLS” and “Jewish pro-Palestine students,” who objected to its incorporation of the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism. 

They were shocked when a majority of the law school’s student senate voted to deny them formal recognition, spurred by an inflammatory and misleading letter from the so-called concerned students.  

Even worse, the Law Students Against Antisemitism students got no help from the law school administration in dealing with a blatant case of viewpoint discrimination.

It took almost a quarter of the semester, but the senate finally re-voted and approved the group -- no thanks to the law school administration, which declined to intervene.

The full story is in my piece at The Hill.

Posted by Steve Lubet on February 12, 2024 at 05:20 PM | Permalink | Comments (0)

The DC Circuit's Use of the Youngstown Concurrence

I want to talk about how the DC Circuit cited Justice Jackson's concurrence in its opinion on ex-presidential immunity from criminal prosecution. One theme in my forthcoming book is that people cite the concurrence for many different propositions. For example, cases quote the opinion to support a functional view of separation of powers. Others do so to criticize originalism. And so on.

The panel's first references to the concurrence (and to Youngstown more generally) say that a president is subject to Acts of Congress and that courts can review presidential actions that are contrary to federal law. In this case, of course, the relevant statutes are criminal laws. And the President's power falls into Category Three if he is indicted on a federal criminal charge: 

The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

The second type of reference is that we are a nation of laws and not of men. 

Beyond simply making explicit that a President must enforce the law, the Take Care Clause plays a central role in “signify[ing] . . . the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Youngstown, 343 U.S. at 646 (Jackson, J., concurring). It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole officer capable of defying those laws with impunity.

The third reference goes to the idea that the courts should not read the President's formal powers or immunities broadly because he already has so much informal power and immunity.

To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted).

This last point is probably the most under appreciated aspect of the concurrence, but I haven't drafted that chapter yet. Alas.

Posted by Gerard Magliocca on February 12, 2024 at 11:01 AM | Permalink | Comments (0)

Saturday, February 10, 2024

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday Music Post - The Times They Are A'Changin'

"The Times They Are A'Changin'" was written by Bob Dylan in 1963. It was released in 1964 as the title track on Dylan's third album, which was his first with exclusively original songs. He picked up the locution "a'changin'" from the British and Appalachian folk ballads popular at the time; the phrase was not current among his urban audience or even in rural Minnesota, but it certainly struck a chord among millions of American youth. Covers abound, and it has remained popular, if not quite equally prophetic, over the years.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on February 10, 2024 at 06:16 AM | Permalink | Comments (0)

Friday, February 09, 2024

In Memoriam: Dan Burk

Many of our readers have probably already heard the sad news about the passing of intellectual property legal scholar giant Dan Burk. Dan was a pioneer in his field, a wonderful mentor, leader and friend. His passing brought sadness to many around the country and the world. Today at UC Irvine a conference in his honor, planned before his passing, is taking place. - a link for paying tribute

In sorrow, here are tributes from two schools where Dan was a leader. 


The UCI Law community is mourning Dan's loss. As noted there, a memorial service celebrating Dan's life and contributions will be announced later.

Posted by Orly Lobel on February 9, 2024 at 04:01 PM | Permalink | Comments (1)

Some Impressions From Yesterday

I was lucky to have a seat in the Court yesterday and wanted to share some thoughts while they are fresh.

First, there is a tradition--dating back to the Marshall Court--of Supreme Court arguments as a social occasion. There was some of that spirit. The line to enter for members of the Supreme Court was long. People were dressed formally. I was able to connect with lawyers and scholars involved in the litigation (some of whom I'd met before and some not). I met the lead plaintiff and sat behind her. It was fun.

Second, the security at the Court is ridiculous and sad. This was my first oral argument in person since the 1990s. At that time, you just stood in line and took your seat. It's nothing like that now. Granted, this was a high-profile case. Maybe ordinary cases are different. In general, though, the openness of government buildings in Washington has declined sharply from when I lived there.

Third, Justice Barrett was the best questioner. She understood the case extremely well. Some of the other Justices, frankly, did not. Normally I'm not in a position to assess that because I don't know all of the details--I'm more or less a casual listener. But I'm inclined to pay more attention to her questions in cases going forward.

Fourth, the answer to the Court's uniformity concerns is pretty simple--Congress can create a uniform process. Saying that the Constitution requires Congress to do so, though, is a non sequitur. Here's what I said about this in a Lawfare essay in January 2021:

[T]here is the question of whether Section 3 is self-enforcing. The answer is probably not. In 1869, Chief Justice Salmon P. Chase issued a circuit opinion holding it was not. This opinion was not well reasoned, as I explain in my paper on Section 3, and might not be followed by the current Supreme Court. But, then again, the court might come to the same conclusion today. 

Congress enacted Section 3 enforcement legislation in 1870 that authorized the Department of Justice to bring quo warranto actions—a common-law writ asking, “by what warrant” does someone lawfully hold office—to oust from office some ineligible officials. But Congress repealed this statute in the 1940s as part of a broad cleanup of “obsolete” provisions. If Chase was right, then Congress would be well advised to enact new Section 3 enforcement legislation. The quo warranto provision of the 1870 Ku Klux Klan Act could be reinstated with some adjustments. For example, the act authorized actions against ineligible officials, not ineligible candidates. There are instances, though, where enforcement should be authorized before elections are held so as to resolve any ex ante uncertainty about whether someone can serve.

I was an advocate of federal enforcement legislation then because (1) the process would be better and (2) the Court might wrongly say that an Act of Congress was required to enforce Section Three. Was there any real prospect of getting federal legislation in 2021? Probably not. The issues were too novel and complex for quick congressional action.

Finally, it is strange to say the least that the only person disqualified by Section Three after January 6th, 2021 may be Couy Griffin, a New Mexico County Commissioner. The Supreme Court's opinion is unlikely to help him. He'll be a constitutional trivia answer for all time.


Posted by Gerard Magliocca on February 9, 2024 at 09:25 AM | Permalink | Comments (0)

Thursday, February 08, 2024

The constitutional validity of the Presidential Succession Act

Following on Steve's point: The Presidential Succession Act does not permit someone to simultaneously serve as a House and act as president. Section 19(a)(1) states the "Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." Section 19(b)(1), should it devolve to the PPT, states "the president pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President." The West Wing producers did not have the character do this for the good of the country--the statute requires resignation. And it does so to avoid the Incompatibility Clause problem.

Legislative succession may raise other constitutional problems. Article II § 1 cl.6 empowers Congress to provide by law for a double vacancy by "declaring what Officer shall then act as President." This raises two possible problems. There is some question whether the Speaker or PPT, while legislative officers, qualifies as an officer of or under the United States; legislative officers may not qualify for succession, incompatibility aside. Alternatively, in the moment he resigns the Speakership and his House seat, the person ceases to be an officer--the condition to act as president--who can then take the oath to act as president.

So there may be constitutional problems with § 19. It is not the problem Calabresi identifies because the statute does not say what he suggests it says. And the statute, by requiring resignation, does not prove the larger point about whether the President is an officer.

Posted by Howard Wasserman on February 8, 2024 at 10:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Is the Presidency an "Office Under the United States"? A View from "The West Wing" [UPDATED]

Writing on the Volokh Conspiracy, my good friend Steve Calabresi seeks to explain why the presidency is not an "office under the Untied States," and thus not subject to Section 3 of the Fourteenth Amendment. Let me suggest that his argument may depend on a misreading of the Incompatibility Clause.

According to Calabresi,

If the presidency is an "office *** under the United States" that covers Donald Trump under Section 3, of the Fourteenth Amendment, then it has to also be an "Office under the United States" for the purposes of the Incompatibility Clause, which bars Members of Congress from holding any "Office under the United States."  That would mean that the Presidential Succession Act of 1947 is unconstitutional because it allows either the Speaker of the House of Representatives or the President Pro Tempore of the Senate to serve simultaneously as a Member of either House and to hold the Presidency in the absence of both a President and a Vice President, which Presidency is wrongly said to be an "Office under the United States". (All boldface original.)

But the Incompatibility Clause only says that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”

Doesn’t that simply mean that the Speaker or Senate President Pro Tempore would have to resign from the legislature in order to assume the presidency (as the statute requires)? That certainly makes more sense than assuming that one person could continue to be both president and Speaker, which is what Calabresi seems to be saying.

Thus, the presidency could be an “office under the United States” and the Presidential Succession Act would be perfectly constitutional, although the Speaker or President Pro Tempore would be put to a tough choice.

This observation was the plot line of the 88th episode of The West Wing, in 2003, when President Bartlet invoked the Twenty-Fight Amendment to suspend himself from office because of his reaction to his daughter’s kidnapping. The Vice President had previously resigned in a sex scandal, so the Speaker of the House (played by John Goodman) had to step in as acting president.

But here’s the point: The Speaker resigned from Congress just to assume the temporary role of acting president, in order to comply with the Incompatibility Clause, which he did for the good of the country.

So over twenty years ago, a technical advisor in Hollywood recognized that the presidency is an “office under the United States” and reconciled that with both the Incompatibility Clause and the Presidential Succession Act.

I have no strong opinion about this, and have written to Steve Calabresi for his reaction, but Jed Bartlet is a damn good authority.

UPDATE: Prof. Calabresi has responded:

I have considered the possibility that the Speaker might resign to eliminate incompatibility, but if he did he would no longer be able to act as President.  Under the 25th amendment, the Vice President actually becomes President when that job is vacant, but the Speaker is only Acting President ex officio of his being Speaker, and, indeed, his first obligation as Acting President under the 25th Amendment is to nominate a Vice President who, when confirmed by both Houses of Congress will then become President displacing the Speaker acting as President who nominated him.  I think the cleaner conclusion, which is supported by the legislative history of the 1792 presidential succession act is that the President is not an “Officer under the United States!

UPDATE: Here is President Bartlet handing over authority to now-ex Speaker of the House Walken:


Posted by Steve Lubet on February 8, 2024 at 08:16 PM | Permalink | Comments (0)

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Posted by Howard Wasserman on February 8, 2024 at 09:43 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, February 06, 2024

Reining in the lower courts

The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.

SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of  § 1983 "and laws" actions.

Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?

Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The DC Circuit Decision and the Youngstown Concurrence

Today's decision rejecting presidential immunity from criminal liability for actions taken while in office cites Justice Jackson's opinion multiple times for the proposition that the President is not above the law and that his office needs no further aggrandizement. When I have more time, I'll explore those issues further. 

Posted by Gerard Magliocca on February 6, 2024 at 12:19 PM | Permalink | Comments (0)

Monday, February 05, 2024

JOTWELL: Pfander on Beswick on Canada's approach to governmental accountability

The new Courts Law essay comes from James Pfander (Northwestern) reviewing Samuel Beswick, Equality Under Ordinary Law, 106 Sup. Ct. L. Rev. (forthcoming 2024), comparing Canada's constitutional tort system with the mess in the United States. As Jim notes at the bottom and to coin a phrase, "Poor Robert Boule."

Posted by Howard Wasserman on February 5, 2024 at 11:38 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Dan Burk--RIP

I note with sadness the passing of Dan Burk. He was a leading IP scholar and a tremendous mentor to young faculty in the field. When I started out, Dan was a mainstay at IP conferences and was very generous with his time and comments. And when I was looking to bring a big name IP scholar to give a lecture at my school. I reached out to him. I'm sure he couldn't have picked me out of a phone book at that time, but he came anyway. It was a delightful visit and he gave me wise advice. He will be sorely missed.  

Posted by Gerard Magliocca on February 5, 2024 at 09:08 AM | Permalink | Comments (0)

Sunday, February 04, 2024

20 Years of Mirror of Justice

With apologies for shamelessly promoting another blog's news . . . this weekend was the 20th anniversary of the first post at the Mirror of Justice blog - a project that purported/aspired to be about "Catholic legal theory", which I co-founded with then-Dean Mark Sargent, well, 20 years ago. I confess, I'm a bit thrown off by the realization that computers existed, let alone blogs, 20 years ago but, put that aside. Happy birthday to us! 

Posted by Rick Garnett on February 4, 2024 at 11:09 PM in Rick Garnett | Permalink | Comments (1)

Saturday, February 03, 2024

Upcoming Event at Westminster College

On March 23rd, I'll be at Westminster College in Missouri to talk about Winston Churchill's views of the Constitution. Westminster is where Churchill delivered his famous "Iron Curtain" speech in 1946. The description of that weekend's events is here.

Posted by Gerard Magliocca on February 3, 2024 at 12:24 PM | Permalink | Comments (0)

Saturday Music Post - At Midnight Tonight . . .

. . . I turn 75.

Appropriate music clips (Wilson Pickett; Patsy Cline) are at The Faculty Lounge

Posted by Steve Lubet on February 3, 2024 at 06:10 AM | Permalink | Comments (2)

Friday, February 02, 2024

The Articles of Confederation

For something completely different, I decided to give a close read to the Articles of Confederation. Couple of things I noticed:

  1. The Articles, unlike the Constitution, uses the word "Governor" to describe the executive leader of some states. The Constitution only uses the phrase "executive authority."
  2. The Articles often required nine states to vote for an action. This was probably the source of the Constitution's rule that only nine states were required for ratification. (The Articles did not use nine states as the amendment rule.) 
  3. The Articles provided for a Standing Committee to do business when Congress was not in session. Many political bodies around the world use this form, but the Constitution does not.
  4. The Articles, unlike the Constitution, refers at one point to "white inhabitants."

Posted by Gerard Magliocca on February 2, 2024 at 11:58 AM | Permalink | Comments (0)

Thursday, February 01, 2024

Thomas Friedman on the "Biden Doctrine"

In today's NYTimes, Thomas Friedman addresses the advent of a potential "Biden Doctrine" on the Middle East:

A Biden Doctrine — as I’m terming the convergence of strategic thinking and planning that my reporting has picked up — would have three tracks.

On one track would be a strong and resolute stand on Iran, including a robust military retaliation against Iran’s proxies and agents in the region in response to the killing of three U.S. soldiers at a base in Jordan by a drone apparently launched by a pro-Iranian militia in Iraq.

On the second track would be an unprecedented U.S. diplomatic initiative to promote a Palestinian state — NOW. It would involve some form of U.S. recognition of a demilitarized Palestinian state in the West Bank and Gaza Strip that would come into being only once Palestinians had developed a set of defined, credible institutions and security capabilities to ensure that this state was viable and that it could never threaten Israel. Biden administration officials have been consulting experts inside and outside the U.S. government about different forms this recognition of Palestinian statehood might take.

On the third track would be a vastly expanded U.S. security alliance with Saudi Arabia, which would also involve Saudi normalization of relations with Israel — if the Israeli government is prepared to embrace a diplomatic process leading to a demilitarized Palestinian state led by a transformed Palestinian Authority.

If the administration can pull this together — a huge if — a Biden Doctrine could become the biggest strategic realignment in the region since the 1979 Camp David treaty.

I found the essay persuasive and well worth reading.

(But the Times needs a better copy editor, preferably someone who didn’t learn geography from a New Yorker cover. In his closing paragraph, Friedman says “[i]t is a strategy that could work with Arab Americans on Lake Michigan.” The Detroit area is on Lake Huron.)

Posted by Steve Lubet on February 1, 2024 at 06:37 AM | Permalink | Comments (0)

Wednesday, January 31, 2024

How Would John Marshall Explain the Trump Decision?

I don't mean how would John Marshall decide the Trump case. When I invent a time machine, we'll find out. I want to focus here on how the Court (or individual Justices) will write the opinions.

Chief Justice Marshall loved discussing issues that were unnecessary to his decisions. He talked about the merits of William Marbury's case before concluding that the Supreme Court lacked jurisdiction. He wrote a long essay on the autonomy of Native American Tribes in the Cherokee cases. He said a lot about the Commerce Clause in Gibbons v. Ogden before holding that the state law was inconsistent with a federal statute. And so on.

This should be a model for the Court today. Instead of saying as little as possible to decide the Trump case, the Court should seriously think about saying as much as possible. Explaining that the 2020 election was not a fraud, for example, would be a national service. Denouncing what happened on January 6th or Trump's conduct would also have an enormous impact. Perhaps these tasks will fall to separate concurrences and dissents and might carry special weight if they come from a Justice that President Trump appointed.  

Posted by Gerard Magliocca on January 31, 2024 at 10:51 AM | Permalink | Comments (0)

Monday, January 29, 2024

§ 3 of the 14th Amendment . . . and Baseball

I bet Gerard never thought of this angle:

Scott Bomboy of the National Constitution Center discusses the case of Victor L. Berger, a German-immigrant socialist elected to the House following an Espionage Act conviction. The House twice refused to seat Berger on § 3 grounds--following his initial election and then when he won a special election after the first refusal. SCOTUS overturned Berger's conviction in 1921, because the trial judge should have recused after making many derogatory and discriminatory comments about German immigrants.

The judge? Kennesaw Mountain Landis. Landis' reputation is shot, fairly or otherwise, for his (uncertain) actions around the integration of MLB in the 1940s. And here he is making another negative contribution to a major historical event.

Posted by Howard Wasserman on January 29, 2024 at 06:22 PM in Howard Wasserman, Sports | Permalink | Comments (0)

(Re-upping) Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie

FIU College of Law and FIU Law Review will host Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie, beginning at 9 a.m. this Friday, February 2, 2024. The programs honors the work of Megan Fairlie, my FIU colleague from 2007 until her death in 2022. The event will be livestreamed.

Program after the jump.

Continue reading " (Re-upping) Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie"

Posted by Howard Wasserman on January 29, 2024 at 01:11 PM in International Law, Teaching Law | Permalink | Comments (0)

Can Trump Be Kept Off Red State Ballots?

My new column at The Hill is mostly descriptive, detailing the issues in the Trump ballot cases by using the standard journalism inquiries: who, what, when, where, and how? (But not in that sequence.)

It also includes an observation I have not seen elsewhere, explaining the practical impossibility of keeping Trump off of ballots in the red states, no matter what the Supreme Court says:

Trump v. Anderson formally involves only the Colorado case.

Trump being Trump, yet more chaos would likely follow if he loses, with the Supreme Court keeping him off the Colorado ballot. A finding of Trump’s ineligibility, especially if it seems hedged or just slightly equivocal, would not automatically remove him from the ballot in the red states. That would require local compliance. Republicans, however, currently control the election machinery in 27 states.

Thus, it is entirely likely that Trump’s name would still appear on the election ballots in most or all of those states, no matter what the Supreme Court says, conceivably leading to a purported majority of electoral votes. Would Vice President Kamala Harris count such electoral votes, officially certified by their state governments, even if they’re contrary to a Supreme Court decision?

You can read the entire essay at The Hill.

Posted by Steve Lubet on January 29, 2024 at 11:52 AM | Permalink | Comments (0)

Confidence- and Emotion-Denotive Language

Denotive language formally indicates something about how a judge has voted in a particular case. In an earlier post, I distinguished judgment-denotive language, such as “dissenting from the judgment,” from opinion-denotive language, such as “concurring in Part I of the Opinion of the Court.” 

But there are other, less common types of denotive language. The most salient example is “dubitante,” which sometimes presents as highly formal. For example, “Friendly, J., (concurring dubitante)” is a conventional citation in reported cases. We might call this type of expression confidence-denotive language.  

In addition, somewhat less formal expressions indicate a judge’s emotions. The most familiar example is the quasi-formal expression of respect that frequently opens or concludes dissents, such as: “I respectfully dissent.” We might label this type of expression emotion-denotive language.

Last week, Justice Sotomayor concluded a capital dissent with language that was both confidence- and emotion-denotive: “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.” Smith v. Hamm, No. 23–6562.

This sort of language, while extraordinary, is more common and diverse than you may think. It may also have legal significance. And it sheds light on judging’s fundamental nature.

Continue reading "Confidence- and Emotion-Denotive Language"

Posted by Richard M. Re on January 29, 2024 at 11:36 AM | Permalink | Comments (0)

Disqualification Does Not Equal Disenfranchisement

Donald Trump's petition for certiorari and his merits brief both assert that the Colorado Supreme Court decision "disenfranchises" millions of voters. This claim is wrong but does explain why some people think that Trump must be convicted of a crime before Section Three can be applied to him.

Voters are not disenfranchised because they cannot vote for their favorite candidate. If that were true, then all state term limits would be disenfranchising voters. So would the 22nd Amendment. And so would any other constitutional qualifications for office. Nevertheless, a court ruling that a presidential candidate was disqualified after he won the election could be understood as disenfranchisement because there can be no do-over election for President. This is why the Court should reach the merits and decide this Section Three case now.

But if you understand Trump's disqualification as the disenfranchisement of his voters, then it makes sense to say that only a criminal conviction can bring about that result. Basically, voters only forfeit their suffrage right due to a felony conviction. Taking away a person's right to vote through a civil proceeding on a preponderance of the evidence standard would be deeply wrong and unlawful. The problem is that Donald Trump's privilege to be President is not the same as the individual right to vote for someone as President. 

Posted by Gerard Magliocca on January 29, 2024 at 11:00 AM | Permalink | Comments (0)

Swarthmore, whatever comes after redux

My kid did not particularly like Swarthmore during the campus visit, so I feel ok enjoying the media-and-podcast tour by Wesleyan's president while criticizing the statements from Swarthmore's president.

That said, in response to Steve, I did not intend to criticize Smith for condemning "river to sea" or "jihadist" as part of a call for civility. (Although I am suspicious of many calls for civility, which can be vague and perverted into content-based suppression of (often) less-powerful speech on the pretext of a content-neutral concept such as civility). My point (which I did not frame well) is that she shifted within that paragraph--from explaining what is and is not protected to what she dislikes to a call for civility. And that confused her message.

And that said, Suzanna Sherry emails with a different criticism of Smith's statement (email quoted with Suzanna's permission):

Whatever the merits of Smith’s general points, I find this bit (emphasis mine) very telling about her own sympathies (which she should not be broadcasting in such a statement):

        For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews.             Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply                 unacceptable and I condemn it.

The difference between “heard by many” and “is” suggests (a) that the Hamas chant is not antisemitic but merely heard as such; and (b) that the “such rhetoric” in the third sentence refers only to the Islamophobic/anti-Arab statements and thus that “river to the sea” is not unacceptable and she does notcondemn it. The referent in the third sentence is ambiguous – it could include both the previous sentences or only the one immediately preceding it – and my point is that the difference in phrasing between the first two sentences tells us which she means.

There may be a response to that; I leave it to Steve to make it, if he chooses.

One more thing I did like in Smith's letter: Although the school allowed the sit-in to continue last semester and will not do the same with future sit-ins, those who engaged in last semester's actions may be receiving notices of conduct violations. University leaders, including the Stefanik Three, have been under fire, in part, for discovering protection for offensive speech only when it targeted Jews (Jeannie Gersen notes this criticism). I initially read Smith as saying last semester's sitters would receive a pass while putting those who engage in future civil disobedience on notice that they will be removed from the space and sanctioned--which would potentially have replayed that criticism by protecting the pro-Palestine/anti-Israel group and sanctioning future pro-Israel protesters. Rather, her point was that the sitters were not stopped in the moment but may face consequences.

Posted by Howard Wasserman on January 29, 2024 at 11:00 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Gersen on academic freedom

From the New Yorker (paywalled). Some good inside-baseball about Harvard since October 7 and the flipping of free-speech positions (what I have been calling Camp 3).

Posted by Howard Wasserman on January 29, 2024 at 08:46 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, January 28, 2024

Swarthmore Redux

Howard and I are not going to agree about some aspects of Swarthmore President Valerie Smith's statement, which is one of the things that makes blogging worthwhile. But perhaps we can bridge some of our differences by adding needed clarity. Smith wrote, 

All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. 

Howard seems to think that this amounted to an intention to suppress such chants:

That something is "heard" as antisemitic or Islamophobic is irrelevant--antisemitic or Islamophobic speech is (in most contexts) protected.

That is a misreading. Smith was instead calling for civility, not threatening punishment, as have other university leaders, including Harvard's former president Claudine Gay:

At the same time, our community must understand that phrases such as “from the river to the sea” bear specific historical meanings that to a great many people imply the eradication of Jews from Israel and engender both pain and existential fears within our Jewish community. I condemn this phrase and any similarly hurtful phrases.

Northwestern's Michael Schill

I call on all members of our community to use our collective voices to emphatically reject statements or banners that significant parts of our community interpret as promoting murder and genocide. This includes flying flags associated with Hamas and banners with the slogan “From the River to the Sea.”

And the deans of all 17 faculties at Columbia:

Yet, when language fails to bring us together, we should still strive to acknowledge the genuine hurt felt by others: acknowledge that hearing chanted phrases such as “by any means necessary,” “from the river to the sea,” or calls for an “intifada”—irrespective of intentions and provenance—is experienced by many Jewish, Israeli, and other members of our community as antisemitic and deeply hurtful; acknowledge that the fear of being labeled as antisemitic or as a supporter of terrorism for expressing anguish about the loss of Palestinian lives in Gaza or the West Bank makes people fearful for expressing their concerns. . . . Even when language breaks down, the grace of compassionate engagement should be extended to all members of our community in equal measure.

The antisemitic, hateful, or racist impact of speech is far from "irrelevant" on a university campus, even when constitutionally protected. After all, "Jews Will Not Replace Us" was constitutionally protected when shouted at a Charlottesville synagogue by torchbearing racists, but surely Howard would agree if President Smith (or anyone else) were to say that "Such rhetoric is simply unacceptable and I condemn it."

Posted by Steve Lubet on January 28, 2024 at 05:56 PM | Permalink | Comments (0)

Swarthmore revisited

Perhaps unsurprisingly, I am less enamored than Steve of the statement by Swarthmore President Val Smith. Pieces are worthwhile, including the reminder that civil disobedience includes facing the consequences of one's actions. And her conclusion--a longer version of "it depends on the context"--is right. But the rest is vague, conclusory, and question-begging, in a way that can (and perhaps will) be used to restrict a lot of otherwise-protected speech at the school. (My disagreement with Steve's assessment of the letter may reflect our different priors about campus speech).

She calls out those who intimidate and threaten those with opposing views, clearly singling out counter-speech, although she does not explain what intimidate or threaten or retaliate means. She says speech that makes people "feel threatened" is unprotected, ignoring how targeted speech must be to constitute a threat. She says "peaceful" does not mean absence of physical harm; it also includes yelling into  bullhorns when the volume causes physical harm (whatever that means).

She at times shifts, without explanation, from what speech can be sanctioned to what she (individually or on behalf of the university) does not like to calling for civil discourse as a normative aspiration. So:

All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. As we engage with those of different perspectives and backgrounds, I urge us all to be mindful that the pathway to common ground is paved with respect and understanding. I am confident that members of this community can find ways to express their views without resorting to harmful or hateful speech that impedes the effectiveness of their advocacy.

What does any of this mean? That something is "heard" as antisemitic or Islamophobic is irrelevant--antisemitic or Islamophobic speech is (in most contexts) protected. What does it mean that she "condemn[s]" such rhetoric, especially after what came before? She may be right about what makes or undermines effective advocacy, but, again, I am not sure how that fits with the rest of the letter.

She ends with:

Nothing I’ve written here is intended as a threat to free expression or an attempt to silence any particular view on campus. On the contrary, my intention is to maintain an environment where individuals are free to express varying views and opinions without fear of retaliation.

If that is her intention, she failed. If I am a Swarthmore student, I have no idea what I am able to say, other than that I cannot occupy a campus building to say it. And she suggests an overbroad interpretation, inconsistent with First Amendment principles, of campus speech codes and of how much speech the college can restrict and sanction.

Posted by Howard Wasserman on January 28, 2024 at 11:20 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, January 27, 2024

Yet More on Campus Speech

Keith Whittington, of the Academic Freedom Alliance, has an excellent essay in The Chronicle of Higher Education titled "Political Solidarity Statements Threaten Academic Freedom." He explains why official departmental statements chill dissenters and perhaps discourage students (a point that I also made here). CHE is paywalled, but here is a key passage: 

Another set of concerns involves the direct pressure put on individual scholars by the proliferation of institutional political statements. Individual members of the faculty are free to engage in individual political expression or to associate with others to express themselves collectively, and universities should be diligent in protecting the freedom of individual professors to do so. But individual members of the faculty also have the freedom to remain silent on matters of controversy and to choose their own time and manner of expressing their political views. They should not, as a condition of employment at a university, be dragooned into the political activities of others. Departmental statements make that impossible. Dissenting individuals are forced either to hold their tongue and allow statements to be issued in their name or to wade into a political controversy when they would prefer not to do so.

Meanwhile, Princeton has evidently used so-called "non-contact orders" to prevent pro-Israel journalists from covering pro-Palestinian demonstrations. As explained in a joint letter from FIRE and the ADL,

Yet Princeton is stifling these discussions and newsgathering by its student press, by permitting students who dislike certain speech to be granted no-communication or no-contact orders against other students. . . . Princeton appears to be granting these orders for any student who requests one, so long as minimal procedural prerequisites are satisfied. These orders are being issued by administrators with disciplinary authority, under threat of punishment, without a modicum of due process, and—most unconscionably—where the student-speaker is not even alleged to have violated any university policy. This practice is deeply chilling, in blatant violation of Princeton’s laudable free expression policies, and must end immediately.
In an event reminiscent of Yale Law School's "trap house" incident, a Princeton dean advised a student reporter to refrain from publishing a legally obtained report on a Students for Justice in Palestine demonstration:

The dean later informed the journalist via email that the university “cannot determine if they would be a violation of the
NCOit is possible that some statements may be interpreted by the other student as an indirect or direct attempt to communicate. The safest course of action in terms of a possible violation of the NCO would be to refrain from writing or to be interviewed for articles that mention the name of the student with whom you have an NCO (or to retract them if that’s possible).
Finally, Swarthmore President Valerie Smith issued a powerful statement on "Diverse Views and Common Values,"
“Peaceful” does not simply mean the absence of physical altercation or harm. Intimidating and harassing individuals for expressing their beliefs is not a form of peaceful dissent. Yelling into bullhorns in enclosed spaces, resulting in physical harm to multiple community members, is not a form of peaceful dissent. Vandalizing the campus is not a form of peaceful dissent. Speech that makes individuals with opposing views feel threatened is not a form of peaceful dissent.
All of us must consider what it means to truly be part of this community and how our words affect each other. For instance, chanting “from the river to the sea” is heard by many as antisemitic and a direct threat against Jews. Referring to Arabs or Muslims as “terrorists” or “jihadists” is Islamophobic and anti-Arab. Such rhetoric is simply unacceptable and I condemn it. 
It is a violation of the norms of this academic community for anyone to prevent the conduct of College business, including lectures, meetings, events, […] ceremonies, or other necessary business and community functions.”
Being willing to face the consequences of one’s actions is an important tenet of civil disobedience.

Posted by Steve Lubet on January 27, 2024 at 02:05 PM | Permalink | Comments (0)

Four Views of the Third Amendment

What legal principle is embodied by the Third Amendment? Not a pressing question, but an interesting one. An interesting one because in spite of the near-total absence of case law on the provision, you can identify at least four ideas that have found a home (pun intended) in the Third Amendment's regulation of quartering soldiers in private homes.

  1. Privacy. This is the modern reading that draws from cases like Katz and Griswold. The harm from quartering soldiers is its invasion of the homeowner's privacy.
  2. Civil limits on military authority. This is how Justice Jackson cites the Third Amendment in the Youngstown concurrence. The idea here is that military officials cannot commandeer a private home (even in wartime) without legal authorization from Congress.
  3. Property. This was the nineteenth-century understanding. Quartering soldiers amounted to an uncompensated taking.
  4. Structural limit on standing armies. This was the 17th and 18th century understanding. In a world without military bases, a standing army was difficult to maintain at home without quartering soldiers. And domestic standing armies were seen as a threat.

One thing this list illustrates is that broad constitutional provisions can evolve even in the absence of applications. They just move with the zeitgeist. I'm not sure if there is a bigger theoretical point there, but maybe.

Posted by Gerard Magliocca on January 27, 2024 at 01:49 PM | Permalink | Comments (0)

More thoughts on campus speech (Updated)

Several things:

Stephen Carter writes in The Times about the importance of free speech to the campus mission of intellectual curiosity and the mistakes and inconsistency of everyone--left and right--since October 7. Some really great stuff here. I do not agree with all of it, especially as to extent of protection for interruption and private opprobrium for other speech.

• [Update]: And this ALI interview with Geoff Stone, hosted by David Levi. (Note: Stone holds the Edward Levi Chair at UC, named after David's father).

University of California's  regents will consider prohibiting academic departments from using university web sites and other channels for political messages unrelated to university business. The proposal responds to many departments at UC schools posting messages supporting Palestine and Hamas and criticizing Israel. Naturally, faculty scream academic freedom, although the inability of the department to speak as an entity does not limit their ability to speak as individual (or a group of) faculty. A question from this: Chicago Principles suggest that sub-units within a university should not engage on current events, for the same reasons the university as a whole should not. But what do Chicago Principles and ideals of academic freedom say when a sub-unit of the university (e.g., UC-Santa Cruz's Ethnic Studies Department) chooses not to abide by those principles but the university imposes them?

• At the upcoming 3rd Annual Law vs. Antisemitism Symposium, I will participate in a roundtable on the legal academy post-October 7. I plan to talk about the December 5 hearing, the range of reactions to it (back to my idea about three camps), and the lessons to be drawn. There is a lot of confusion on that last, as this story from FIRE demonstrates. FIRE is pushing back on proposals at several schools to revise campus speech codes to prohibit explicit calls for genocide against groups. I share FIRE's opposition to such efforts and its arguments against these proposals. But FIRE describes these efforts as "fallout" from the presidents' "disastrous" congressional testimony.

But what makes the testimony "disastrous?" If FIRE is worried about schools expanding their speech codes, the disaster was the presidents advancing (however inartfully) the pro-speech position ("protection of speech depends on context") and getting attacked by Elise Stefanik, who insisted that calls for genocide must violate campus speech codes ("the answer is yes!"), prompting universities to amend those codes to satisfy Stefanik and other committee Republicans. If so, the disaster lay in Stefanik's response, not in their testimony. Or the disaster was their inartfulness--failing to fully explain why context matters or to precursor their statements by condemning such speech. But that requires us to believe Stefanik--a dishonest actor--would not have had the same response to a fully articulated First Amendment vision explaining why many "river to sea" chants are constitutionally protected and thus do not violate campus speech codes.

Posted by Howard Wasserman on January 27, 2024 at 12:36 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday Music Post - I Wish I Could Shimmy Like My Sister Kate

Louis Armstrong claimed that he wrote "I Wish I Could Shimmy Like My Sister Kate" and sold it for $10 that he never received. Most sources, however, attribute it to the violinist Armand Piron, who published it in 1922. Both Armstrong and Piron were from New Orleans, which adds either credibility or motive to Armstrong's story, depending on what you want to believe. The song has been covered hundreds of times over its 100 years history, in jazz, Dixieland, ragtime, jug band, and even rock genres. (Oddly, I couldn't find a clip of Armstrong doing the song. Maybe he boycotted it.)

The clips are at The Faculty Lounge.

Posted by Steve Lubet on January 27, 2024 at 06:23 AM | Permalink | Comments (0)