Monday, August 14, 2023

A John Bingham Postage Stamp

Let's turn to more important matters. I'm going to try to get John Bingham on a stamp. He's dead and he's important, so he's eligible.

I learned that to nominate someone for a stamp you need to write to the Citizens Stamp Advisory Committee explaining why you think your candidate is worthy. A couple of years later, you get a decision. So I'm going to draft such a request. If anyone would like to join me in this effort, let me know.

Posted by Gerard Magliocca on August 14, 2023 at 09:14 PM | Permalink | Comments (0)

You've Got Questions? I've Got Answers

In light of the Baude/Paulsen paper, I want to address some common misconceptions about Section Three.

1.  Unless you want to indulge in a legal fiction, Section Three of the Fourteenth Amendment does not give local and state officials broad discretion to exclude candidates from the ballot. If any official, high or petty, says that Donald Trump is ineligible to run, that case is going straight to the Supreme Court. Thus, there will be a national decision creating a national standard next year.

2. A criminal insurrection conviction is unnecessary to apply Section Three. None of the reported cases on Section Three involved a person charged with or convicted of insurrection. To say that disqualification--a civil remedy--requires a criminal conviction would turn upside-down the relationship between civil and criminal law.

3. Section Three does not apply only to ex-Confederates. The language is general and the Senate specifically rejected an amendment that would have limited the provision to the "late insurrection." The House of Representatives also rejected this view during World War One by applying Section Three to Representative-elect Victor Berger.

More to come . . . 

Posted by Gerard Magliocca on August 14, 2023 at 08:49 AM | Permalink | Comments (0)

Sunday, August 13, 2023

Long Covid and ME/CFS

This weekend is the seventeenth anniversary of my ME/CFS onset. The skepticism and stigma were so great at the time that I waited nine years to out myself in a post at The Faculty Lounge. Things have improved in the intervening years, as the NIH, CDC, and most recently the British National Institute for Health and Care Excellence (NICE) have recognized ME/CFS (myalgic encephalomyelitis/chronic fatigue syndrome) as a systemic biomedical illness. Even so, there remains a corps of revanchist psychiatrists, mostly in the UK, who continue to insist that ME/CFS symptoms are caused by "dysfunctional illness beliefs" and deconditioning, thus disastrously advising graded exercise therapy, which leads to debilitating crashes that only make the condition worse (as documented in a study by the U.S. Institutes of Medicine).

Now, in a new phenomenon, long covid sufferers are often facing the same medical gaslighting, as described by this column by the novelist Madeline Miller in today's Washington Post:

I reached out to doctors. One told me I was “deconditioned” and needed to exercise more. But my usual jog left me doubled over, and when I tried to lift weights, I ended up in the ER with chest pains and tachycardia. My tests were normal, which alarmed me further. How could they be normal? Every morning, I woke breathless, leaden, utterly depleted.

For me, one of the worst was post-exertional malaise (PEM), a Victorian-sounding name for a very real and debilitating condition in which exertion causes your body to crash. In my new post-covid life, exertion could include washing dishes, carrying my children, even just talking with too much animation. Whenever I exceeded my invisible allowance, I would pay for it with hours, or days, of migraines and misery.

Doctors looked at me askance. They offered me antidepressants and pointed anecdotes about their friends who’d just had covid and were running marathons again.

I didn’t say I’d love to be able to run. I didn’t say what really made me depressed was dragging myself to appointments to be patronized. I didn’t say that post-viral illness was nothing new, nor was PEM — which for decades had been documented by people with myalgic encephalomyelitis/chronic fatigue syndrome — so if they didn’t know what I was talking about, they should stop sneering and get caught up. I was too sick for that, and too worried.

Here is a recent essay I coauthored in Health Affairs about ME/CFS and long covid. We will publish an update later this month.

Posted by Steve Lubet on August 13, 2023 at 07:50 AM | Permalink | Comments (2)

Saturday, August 12, 2023

Environmental Law Chair Search

As part of my law school's hiring this year, we are looking to fill a Chair in Environmental Law. Here is the announcement:

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from experienced scholars for appointment as our McKinney Family Chair in Environmental Law, a tenured position leading the law school’s environmental law program, to begin August 1, 2024. The incoming McKinney Family Chair will hold a J.D. or equivalent degree and have a substantial scholarly record in the environmental law field. The incoming chair should expect to teach four courses, one of which will be a first-year or other required course; advise students with interest in environmental law careers; produce nationally or internationally impactful scholarship; and make substantial service contributions to the institution, community, and/or profession.

IU-McKinney is committed to being a welcoming community that reflects and enacts the values of diversity, equity, and inclusion that inform academic excellence. We seek candidates who will not only enhance our representational diversity but whose research, teaching, and community-engagement efforts contribute to diverse, equitable, and inclusive learning and working environments for our students, staff, and faculty. For details on our commitment to inclusion, see: more information about the school, please visit We encourage applications from persons of color, women, persons with disabilities, the LGBTQ+ community, veterans, and members of other groups that are under-represented on university faculties.

Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment based on individual qualifications. Indiana University prohibits discrimination based on age, ethnicity, color, race, religion, sex, sexual orientation, gender identity or expression, genetic information, marital status, national origin, disability status, or protected veteran status.

IU-McKinney is located in Indianapolis, the state capital and the nation’s 16th largest city by population, with a wide variety of restaurants, theaters, and music venues; substantial outdoor green space; an award-winning international airport; and professional football, basketball, baseball (AAA), and soccer (USL) teams. The McKinney School of Law is on Indiana University’s main urban campus, located downtown between the state capital complex and the White River.

Review of applications will take place during the fall 2023 with initial interviews to begin in November. To apply, please forward a CV, a letter of application discussing your ability to contribute to student success at IU-McKinney and the strengths you will bring to the position, and a list of references. Appointment as a chair will require six letters of recommendation from nationally recognized scholars and a tenure review. Interested candidates may locate other application requirements and submit their application at For more information, please contact the Recruitment Committee Chair, Professor Michael Pitts, at [email protected] or 317-278-9155.

Posted by Gerard Magliocca on August 12, 2023 at 08:00 AM | Permalink | Comments (0)

Saturday Music Post - The Entertainer

"The Entertainer" was written by Scott Joplin in 1902. The sheet music sold well, and by 1910 it was distributed on piano rolls played by Joplin himself. Some of Joplin's rolls still exist, but none of "The Entertainer." Most surviving Joplin rolls were "edited" by others, and the only pure example of Joplin's playing is a roll of "Maple Leaf Rag" (maybe for another post some day). The first recording of "The Entertainer" was by The Blue Boys in 1928 (see bottom of the post), on guitar and mandolin, which may explain why it has become such a popular guitar piece. Ragtime had a resurgence in the 1970s with Eubie Blake's Broadway revue and the anachronistic score of The Sting, and arrangements of "The Entertainer" remain popular to this day on piano, strings, woodwinds, horns, and vocal arrangements.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on August 12, 2023 at 06:05 AM | Permalink | Comments (0)

Friday, August 11, 2023

Understanding Civil Rights Litigation (3d edition)

I am happy to announce that the third edition of Understanding Civil Rights Litigation has been published with Carolina Academic Press and is available for use in Civil Rights and Fed Courts classes the world over. I think (hope) the third time is the charm--I got it where I want it in terms of writing style, structure and organization, and balance among doctrine, case discussion, commentary, and problem sets. I am looking forward to using it in class in the spring.

The book was delayed by about a month because I had to make a series of changes as courts did new things that either changed or supplemented what I wrote. The Court taking seven months to decide Talevski did not help. Naturally, judicial decisions continue to outstrip the book. The Ninth Circuit overruled circuit precedent and joined every other court that § 1981(c) does not create a private right of action and plaintiffs must pursue § 1981 claims against municipalities through § 1983. A divided en banc Fourth Circuit overruled circuit precedent to join every other circuit that preliminary injunctive relief can make a prevailing party entitled to § 1988 attorney's fees.  Two Fifth Circuit judges got into it over whether circuit precedent can clearly establish a right for qualified immunity. All cases would have been helpful to how I wrote pieces of the new edition. I suppose it is inevitable.

Posted by Howard Wasserman on August 11, 2023 at 12:25 PM in Books, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Appropriations and Youngstown

The standard story of Youngstown goes something like this. President Truman ordered the seizure of the steel mills. The steel firms sued. They won in the Supreme Court. Congress did nothing.

But this is wrong. Congress did (sort of) do something while the litigation was pending. The Senate rejected a special appropriation that was proposed to fund the government's operation of the mills. This occurred on April 21, 1952. Curiously, this action was not mentioned by any of the opinions in the case (I'm going to double-check, but I'm pretty sure.) Obviously, this expression of disapproval strengthens the case made by the Court that Truman was not executing congressional policy in seizing the mills. I will dig into this further.

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

Thursday, August 10, 2023

Hiring Announcment: Florida State

Florida State University College of Law invites entry-level and lateral candidates to apply for tenure-track and tenured positions to begin August 2024. Candidates in all academic areas are encouraged to apply, although criminal law/procedure, environmental law, international law, and business law are priority hiring areas.

FSU Law also invites applications and nominations for the Tobias Simon Chair in Public Law. The Chair was established in honor of Tobias Simon, a well-known civil rights lawyer and late professor at the College of Law. Candidates must hold a J.D., Ph.D., or equivalent degree, have significant experience (5 years minimum) in teaching and/or practice, and be qualified for appointment as a tenured, full professor. Candidates must have a distinguished publication record in a public law field, including, but not limited to, civil rights and civil liberties, international law, and public policy.

If interested in either/both opportunities, please send a letter of application and curriculum vitae to:

Professor Wayne Logan, Chair

Appointments Committee

Florida State University College of Law

Tallahassee, FL 32306-1601

[email protected]


FSU is an Equal Opportunity/Access/Affirmative Action/Pro Disabled & Veteran Employer.

FSU’s Equal Opportunity Statement can be viewed at:


Posted by Howard Wasserman on August 10, 2023 at 01:41 PM in Teaching Law | Permalink | Comments (0)

"Oppenheimer" and the Constitution

I have not seen "Oppenheimer" or "Barbie." But I am thinking about how the invention of nuclear weapons served as an important backdrop to Justice Jackson's concurrence in Youngstown as I work through that chapter of the book.

As Garry Wills points out in his book Bomb Power, nuclear weapons changed the constitutional zeitgeist in favor of the President. Why? Because once the President had the unilateral power to blow up the world, it was easier to argue that he had lesser unilateral powers. He has the power to blow up the world because we think that the decision to use a particular weapon is a tactical choice that falls well within the Commander-in-Chief Clause. (A few people asked questions about this at the end of the Trump presidency, but nothing came of that.) It's like an issue that I think I'll write about next year, which is how the draft served the same function for congressional authority (though not so much anymore).

Of course, the argument that the greater always includes the lesser is not correct. And Jackson offered a corrective of sorts in his opinion. I'm not sure if he ever talked about nuclear weapons as such (he didn't in the concurrence), but I'm looking into that.

UPDATE: Actually, there is a great "Yes, Prime Minister" episode that makes this point. The Prime Minister is told that he cannot hire a government cook for #10 Downing Street. He asks: "So I have the power to blow up the world, but not to hire a cook?" Eventually they find a workaround to get the cook, which is revealing in its own way.

Posted by Gerard Magliocca on August 10, 2023 at 12:02 PM | Permalink | Comments (0)

Hiring Announcement

I am on the Hiring Committee at my school and we are hiring! See below.

INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for two full-time, tenure-track faculty positions at the rank of Associate Professor of Law to begin August 1, 2024. As part of a four-course teaching package (three in the first year), new hires will teach one or more required 1L course(s) and/or one or more core upper-level course(s), including Civil Procedure, Constitutional Law, Contracts, Criminal Law, and Evidence.Applicants must hold a J.D. or equivalent degree. We seek candidates with potential for and/or a record of innovative scholarship, engaged teaching, and institutional service. We also value prior experience as a Visiting Assistant Professor or as a judicial clerk.
The Indiana University McKinney School of Law offers competitive salary and generous benefits, a three-course package in the first year for pre-tenure hires, a semester of pre-tenure research leave, a generous professional development account, funds to retain research assistants, and summer research compensation for active scholars.
IU-McKinney is committed to being a welcoming community that reflects and enacts the values of diversity, equity, and inclusion that inform academic excellence. We seek candidates who will not only enhance our representational diversity but whose research, teaching, and community-engagement efforts contribute to diverse, equitable, and inclusive learning and working environments for our students, staff, and faculty. For details on our commitment to inclusion, see: For more information about the school, please visit encourage applications from persons of color, women, persons with disabilities, the LGBTQ+ community, veterans, and members of other groups that are under-represented on university faculties.
Indiana University is an equal employment and affirmative action employer and a provider of ADA services. All qualified applicants will receive consideration for employment based on individual qualifications. Indiana University prohibits discrimination based on age, ethnicity, color, race, religion, sex, sexual orientation, gender identity or expression, genetic information, marital status, national origin, disability status, or protected veteran status.
IU-McKinney is located in Indianapolis, the state capital and the nation’s 16th largest city by population, with a wide variety of restaurants, theaters, and music venues; substantial outdoor green space; an award-winning international airport; and professional football, basketball, baseball (AAA), and soccer (USL) teams. The McKinney School of Law is on Indiana University’s main urban campus, located downtown between the state capital complex and the White River.
Review of applications to begin mid-August 2023 with initial interviews to begin in September. To apply, please forward a CV, a letter of application discussing your ability to contribute to student success at IU-McKinney and the strengths you will bring to the position, a writing sample, and a list of three references. Interested candidates may locate other application requirements and submit their application at

For more information, please contact the Recruitment Committee Chair, Professor Michael Pitts, at [email protected] or 317-278-9155.


Posted by Gerard Magliocca on August 10, 2023 at 09:51 AM | Permalink | Comments (0)

Tuesday, August 08, 2023

No, Gov. DeSantis, Slavery Did Not Confer "Personal Benefits" on Blacksmiths or Anyone Else

My new essay in The Daily Beast is in response to Florida’s revised Black History curriculum. It is the remarkable story of Allen and Temperance Jones, and the enslaved blacksmith’s struggle to free his family in antebellum North Carolina. Here is the gist:

How an Enslaved Blacksmith Had to Enslave His Own Family to Win Their Freedom

Most historians were appalled when the Florida Board of Education adopted new standards for the state’s African American History curriculum, including instruction on “how slaves developed skills which, in some instances, could be applied for their personal benefit.”

Gov. Ron DeSantis, however, thought it was just fine. “They’re probably going to show that some of the folks that eventually parlayed, you know, being a blacksmith into doing things later in life,” the Republican presidential candidate explained.

Trained as a blacksmith, Allen had been able to work for wages on Sundays, the slaves’ only day of rest, eventually saving the $685 required to buy his freedom.

Now able to work full time and keep his earnings, Allen saved the $3,000—a small fortune in those days—necessary to free Temperance and their three children.

North Carolina law required manumitted slaves to leave the state unless they had been freed under narrow circumstances. Allen was compelled to purchase his own wife and children, enslaving them to himself.

So yes, Allen Jones was trained as a blacksmith by an enslaver, but the brutal system did everything possible to deprive him and his family of any personal benefit.

You can read the entire essay in The Daily Beast.

Posted by Steve Lubet on August 8, 2023 at 04:20 AM | Permalink | Comments (0)

Monday, August 07, 2023

Barbie's Battles & the Darker Side of Mattel

Barbie the Movie has broken all the blockbuster records. I saw the movie - mixing business and pleasure. My book You Don’t Own Me: The Legal Battles That Revealed Barbie's Dark Side (Norton) tells the story of Mattel's decades long dominance in the doll industry. The Barbie Movie produced by Mattel allows limited self-poking fun at the brand while concealing this darker side of the brand and the questionable marketing and corporate ethics that continue to lead to its success. The story of Mattel using litigation - primarily IP and employment contract claims - as a sledgehammer is both specific and universal. The toy industry like m many other industries has become increasingly concentrated, with the dominant corporations demanding boilerplate contracts from their employees preventing post-employment mobility, and in turn new entry, innovation and new products.

More on all this in You Don't Own Me and in an article I will post next week. Meanwhile, as part of my research, I dressed up as Barbie for the movie outing with my girlfriends. Also spoke about the darker side on the Unladylike podcast here. and a Dahlia Lithwick Slate Amicus podcast about the book well before the movie here. #Lawprofessorsjustwanttohavedfun #ImaBarbieGirl


May be an image of 3 people, blonde hair and textMay be an image of text that says '1v @PublishersWkly As Barbie faces off against Christopher Nolan's 'Oppenheimer' at the box office this month, catch up on Mattel's protracted legal battle with the makers of Bratz, as reported in Orly Lobel's 'You Don't Own Me.' PW's review: 43jPlUp @wwnorton YOU DON'T'

Posted by Orly Lobel on August 7, 2023 at 05:11 PM | Permalink

Conflicts of Interest at Mar a Lago

My new column at The Hill explains how the lawyer for Walt Nauta, Trump’s codefendant in the “retained documents” case, has conflicts of interest that may lead to his disqualification. If so, Nauta’s new attorney is likely to counsel him to reconsider cooperating with the prosecution. Here is the gist:

There is more than one conflict in Trump’s classified documents case 

A seemingly routine pretrial motion in the Florida “retained documents” case — involving only codefendant Waltine Nauta — potentially spells serious trouble for the former president. 

On the surface, special counsel Jack Smith’s motion for Garcia hearing asks only that the court inquire into possible conflicts of interest for Nauta’s lawyer, Stanley Woodward. The subtext, however, is that Woodward, who has been described as a go-to lawyer for Trump world “bigwigs,” may well be disqualified as defense counsel, and any replacement attorney might be far more inclined to encourage Nauta to take a deal and testify against Trump. 

Woodward is unquestionably an honorable lawyer. I do not doubt that he has obtained Nauta’s formal consent to his representation, following extensive disclosure, which Nauta will confirm in court. Conflicts of interest, however, often have their greatest impact below the surface, subtly distorting judgment, clouding insights and blunting acuity, in ways that the lawyers and clients themselves do not appreciate or perceive. 

Nauta will ultimately decide for himself whether to defect from the defense camp. But Woodward is not the right attorney to deliver the sternest of warnings about the dangers of sticking with Trump. That would be the job of an unconflicted lawyer, and we will soon find out whether Judge Cannon will require one. 

You can read the entire essay at The Hill.

Posted by Steve Lubet on August 7, 2023 at 10:35 AM | Permalink | Comments (0)

Saturday, August 05, 2023

Saturday Music Post - Hickory Wind

"Hickory Wind" was written by Gram Parsons during his International Submarine Band days in the early 1960s, with bandmate Bob Buchanan. Parsons later recorded it with the Byrds for Sweetheart of the Rodeo, one of the few cuts on which his lead vocal wasn't overdubbed by Roger McGuinn. He later released it with Emmyou Harris on Grievous Angel. Parsons caused a controversy during the Byrds' one and only Grand Ole Opry appearance in 1968 when MC Tompall Glazer introduced Life in Prison, but Parsons sang Hickory Wind instead. The audience was already heckling the hippies (who had actually gotten haircuts before the performance), and they booed the seeming disrespect for Glazer. Times have changed.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on August 5, 2023 at 05:21 AM | Permalink | Comments (0)

Wednesday, August 02, 2023

From Jotwell: "Constitutional Scholactivism, Foreign and Domestic"

At Jotwell, I have a new jot discussing an article and reply to critics by Tarunabh Khaitan on the subject of "constitutional scholactivism." Khaitan defines scholactivism in a motive-centered way, as scholarship “distinguished by the existence of a motivation to directly pursue specific material outcomes.” He "emphasizes the difference between the scholactivist attempt to achieve 'direct, proximate, material [ ] impact through one’s scholarship,' and the scholarly motivation to seek 'merely discursive' impact." He carefully examines and critiques scholactivism and argues that even its supporters should be concerned about it for instrumental reasons.

In my jot, I commend Khaitan for being "willing to question scholactivism as such, regardless of its political valence, because that is just what a scholar does." And I argue, for familiar reasons that are usefully highlighted by being viewed through the lens of someone writing about legal scholarship norms outside the United States, that his concerns are especially relevant in this country:

Khaitan’s piece is particularly resonant for American scholars, perhaps in ways he didn’t anticipate. He writes that the nature of activism is “in tension with the academy’s need to provide time and distance for research and reflection, inculcate an attitude of skepticism, and reward truth-seekers and knowledge-creators.” Those tensions “put even a moderate scholactivist at risk of failure as a scholar.” The need to publish in a timely fashion to achieve specified goals may lead the scholactivist to, inter alia, “submit the paper to a non-peer-reviewed student-run law review known for its quick publishing decisions and for preferring practice-oriented novel claims over academic rigor.”

For Khaitan, these are perilous moves away from the rigor and role-morality of a true scholar. American legal scholars just call it Tuesday. Seeing these practices through the eye of a non-Stateside scholar reminds us just how few of the ordinary guardrails for serious scholarship are in place in the American legal academy. That strengthens Khaitan’s argument in the United States.

Some responses to Khaitan argue that if a scholactivist takes the short-cuts he worries about, the problem will cure itself, because such work either won’t be published or will be ignored. But the nature of the American legal academic enterprise—the vast number of journals, the reliance on student editors and absence of thorough peer review, the relative lack of political diversity and the two-solitudes relationship between contending sides, the reluctance to criticize the methodologies of one’s friends and allies—exacerbates the risks and weakens the safeguards that both Khaitan and his critics acknowledge. To the usual structural failings, we can add that the current crop of American student law review editors has a marked enthusiasm for scholactivism. They are thus likely to publish more of it, without being able to properly evaluate it (or any other scholarship) for rigor and integrity—and less likely to publish the few critiques of this approach that might emerge from the rather timid U.S. legal academy....

More at Jotwell. I would add two things here. First, time has caught up with one statement. I wrote that "at least at this moment, one will find no uses of the word 'scholactivism' in the Secondary Sources database on Westlaw. That was true up to the finalization of the draft, but there is now at least one passing reference. Second and related, there is definitely room for more, including both critical and supportive discussion. If, as I argue in the jot, 1) a lot of American law review articles (in constitutional law, certainly, but not limited to that subject) are scholactivist and 2) contemporary law review editors seem eager to champion this sort of goal-motivated scholarship--and I think most would agree with both statements--then those editors should, at a minimum, be looking for work that subjects this approach to close examination and critique. As the excerpt above and a number of my Prawfs posts have made clear, I think American law schools and professors, who alone are responsible for the structure and condition of their discipline, ought to do a lot more than that. Simply treating our field's journals and their editorial structure and decisions, bizarre as they may be compared to other academic disciplines, as something over which we have no control is a form of ongoing disciplinary abdication. 

This is just one aspect of a larger discussion in an interesting pair of articles. Read Khaitan! And by all means read the interesting responses his initial piece received, at least outside the United States. 

Posted by Paul Horwitz on August 2, 2023 at 02:44 PM in Paul Horwitz | Permalink | Comments (0)

Page Limits?

At SEALS last week, I watched an interesting panel on SCOTUS credentials. Panelists were Ben Barton (Tennessee, author of The Credentialed Court) and Renee Knake Jefferson (Houston) and Hannah Brenner Johnson (Cal Western), co-authors of Shortlisted). Ben mentioned the absurd lengths of recent SCOTUS opinions, which he attributed to the changing (and homogeneous-in-some-respects) identities of the justices and their workloads. Ben suggested the need for word-or-page limits on SCOTUS opinions, just as the Court imposes word-or-page limits on the parties.

I agree there might be some merit to this. Here is the question: Could Congress impose that requirement?

Obviously Justice Alito would say no. Now how about the rest of us who actually work with the Constitution's text and structure. Does the "judicial power" and Klein's principle that Congress cannot tell the Court how to decide a case include how the Court writes and structures its opinions resolving those cases? Is opinion length akin to the sources of law the Court can rely on (e.g., requiring originalism or prohibiting international law)?

Leaving comments open for thoughts.

Posted by Howard Wasserman on August 2, 2023 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (6)

Tuesday, August 01, 2023

The future of New York Times and SLAPP laws

A federal judge last week dismissed Donald Trump's $ 450 million lawsuit over CNN describing his post-election statements as "the Big Lie." Despite some gratuitous shots at New York Times and the media* (some judges can neither help themselves nor resist the temptation to audition for a higher court), the court recognizes that NYT has nothing to do with this case because every statement at issue is opinion rather than provably false fact and political motivations do not affect speech's constitutional protection. That is, this action fails not because of actual malice but because of the entire First Amendment edifice.

[*] And truly gratuitous praise for the affirmative-action decision, which has nothing to do with anything. Again, cannot help themselves.

The case also illustrates a separate point about anti-SLAPP laws and their importance in protection speech. In my view, the special dispositive motion, which does not apply in federal court in the Eleventh Circuit, is not necessary to deter frivolous defamation suits and protect speakers against the costs and burdens of litigation. Rule 12(b)(6) suffices in most cases to end litigation quickly and without discovery--thanks to Twiqbal (it is hard to plead falsity and actual malice) and to how much of the First Amendment regime creates questions of law for the court (such as whether a statement constitutes fact or opinion).

The real protection comes from awarding the prevailing defendant anti-SLAPP attorney's fees. That alleviates the costs (if not the distraction) of litigation, regardless of how long it goes. One judge in the Southern District has held that Florida's anti-SLAPP law disentangles fees from the dispositive motion--a defendant can recover fees when the court finds the suit without merit and filed for an improper purpose, regardless of the mechanism for that finding. This contrasts with other states in which defendants recover fees when they win on the special anti-SLAPP motion (which cannot be brought in most federal courts). Waiting to see if CNN seeks fees and whether this judge follows his district colleague as to the availability of fees.

Posted by Howard Wasserman on August 1, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 31, 2023

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

Continue reading "Peak scope-of-injunction confusion"

Posted by Howard Wasserman on July 31, 2023 at 02:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Samuel Alito Inadvertently Made the Best Case for Supreme Court Ethics Reform

My new essay on Slate explains how Justice Samuel Alito just advanced the case for requiring the Supreme Court to adopt a code of ethics. Here is the gist:

On Friday, the movement to require the United States Supreme Court to adopt a code of conduct got a boost from a surprising source: Justice Samuel Alito. Of course, at this point backers of ethics reform should be used to Alito putting his foot in his mouth to inadvertently offer support for their cause, which is just what he did again. Indeed, in an interview published on Friday in which he trashed the possibility of an enforceable Supreme Court ethics code established by Congress, the conservative icon made the strongest possible case for such a code: It is needed to force Alitoand any other like-minded justicesto keep mum about cases that could come before them, as all other judges in this country are obligated to do.

Questioned about the SCERT Act, the justice replied on the record, I know this is a controversial view, but Im willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Courtperiod. This statementin and of itselfis a perfect illustration of why the SCERT Act is needed. And, further, it should force Alito off the case should the act ever become law and the constitutionality ever be questioned in court. Hes clearly made up his mind, and the SCERT Act itself would demand his recusal in cases where hes already expressed such a strong opinion.

You can read the entire essay on Slate.

Posted by Steve Lubet on July 31, 2023 at 01:21 PM | Permalink | Comments (0)

Sunday, July 30, 2023

Social Q's, Retired Judge Edition

A recent "Social Q's" column in the New York Times addresses the following law-related etiquette question:

A Hard-Earned Title Worth Demanding

I am a retired judge. Like many judicial retirees, I work as a private arbitrator, occasionally on panels of three. I am working on a panel now with a retired judge from another state. On conference calls, he refers to himself as Judge Smith and to me as Miss Jones — even after he’s heard the lawyers call me Judge Jones. Should I let this go, or take it up with him and the agency that books our cases?



To me, it seems just as premature to let this go as it does to report the man to the agency that hires you both. You are peers and have nothing to fear from him. Speak up! Tell him you want to be called Judge Jones — the same honorific you use for him. If he doesn’t, then report him. There is probably some degree of sexism baked into his current behavior, but you won’t know how much until you point out his error directly.

The answer, from novelist Philip Galanes, who has been writing the column since 2008, makes pragmatic sense, but it misses a key point. Neither of the arbitrators should be calling themselves "judge." Judicial titles apply to the office, not the person, and should not be used for private purposes.

ABA Formal Ethics Opinion 95-391 makes this clear:

A former judge who returns to the practice of law may not continue to use the titles "Judge" or "The Honorable."

Nor should he encourage others to refer to him as "Judge X" or "Your Honor" in the courtroom or otherwise in connection with legal proceedings. [Gendered language in 1995 original.]

This is especially so in arbitrations, where it is important to preserve the distinction between private dispute resolution and actual legal proceedings.

Yes, I know it is common, but it is still wrong.

Comments are open and will be monitored for relevance and civility.

Posted by Steve Lubet on July 30, 2023 at 12:59 PM | Permalink | Comments (4)

Saturday, July 29, 2023

Saturday Music Post - Freight Train

"Freight Train" was written by Elizabeth Cotten (1893-1987) in the early 20th century when she was performing in and around her hometown of Chapel Hill, North Carolina.  Cotten stopped performing for many years while raising a family and was "rediscovered" by the Seeger family, for whom she was working as a domestic and nanny -- for Mike and Peggy, but not their older half-brother Pete -- in the early 1950s. Because she was left-handed, Cotten played a standard guitar upside down, with the bass strings at the bottom. Her alternating bass style, played with her forefinger, became known as Cotten picking, though right-handed guitarists naturally play the bass line with their thumb.

Peggy Seeger moved to the UK in the mid-50s with her husband Ewan MacC0ll, also a folksinger, bringing "Freight Train" with her.  It was recorded in 1956 by Nancy Whiskey and Chaz McDevitt, who scored a skiffle hit, said to have influenced the Quarrymen who went on to other genres under another name. A couple of British songwriters misappropriated the copyright, which Cotten was finally able to reclaim with the help of the Seeger family (yes, that's somewhat ironic, given Pete's habit of misappropriating copyrights for himself).

The clips are at The Faculty Lounge.

Posted by Steve Lubet on July 29, 2023 at 06:32 AM | Permalink | Comments (0)

Friday, July 28, 2023

The Ethics of the Justices--and Their Honor

The New York Times story on the books of the Justices serves as a nice occasion to voice something that has frustrated me about the recent discussions of the Court and the conduct of individual justices. There are good reasons to subject lawyers and judges to ethical codes, of course. Not least among them is that they provide (relative) clarity for insiders and outsiders alike. But a less good reason, at least as I see it as a Canadian let loose in the U.S., is the endless American habit of turning moral and political questions into legal ones, and vice versa. The result, all too often, is that a value or course of conduct that's not codified isn't taken seriously, and if it is codified it ends up being treated as a full and adequate account of one's obligations. (This general point generated a lot of legal scholarship about constitutional and political "norms" starting around 2016, although scholarly interest in the subject seems inexplicably to have waned in the last three or four years.)

I'm not opposed as such to codifying and/or strengthening the ethical rules that apply to Supreme Court justices. But inevitably, not everything that constitutes honorable conduct by a Supreme Court justice can or will be codified as an ethical rule. Indeed, not everything that constitutes honorable or dishonorable conduct by a judge or other office-holder should be codified as an ethical rule. And there are a lot of things that we might generally agree fall within the proper scope of official ethical conduct but are dishonorable. Of course we will disagree about what constitutes honorable conduct by an official, just as, even with an ethical code in place, we disagree about what conduct falls within or outside that code. Under our current system, for instance, absent specific circumstances it is ethical for a justice to serve for a very long time. But it is arguably not always honorable, even absent scandalous motives or actions.

Our usual focus on the official ethics of office-holders, rather than on what constitutes the honorable or virtuous path for such officials, leads us either to end the discussion once we've argued the official ethical question to death, or to seek some legal hook or official "scandal" to say what we could say more easily and directly in honor language: that some way of acting, permissible or not, is wrong, a discredit to the office, and should be criticized. The legalization of the discussion tends to lead to a false binary debate, conducted by the usual online debating societies and so-so journalistic commentators, in which something is, as it were, either a legal violation or a "nothing-burger."

Judges do inhabit an honor culture and form part of an honor group, consisting at the least of both their judicial colleagues and other participants in the professional legal community. It would be nice if more of our discussion explicitly discussed not what is ethical for judges, but what is honorable or virtuous. The dubious support of Richard Painter notwithstanding, I doubt it is either unethical or dishonorable to host a pay-your-own-way Christmas party with your former clerks. I don't think it's unethical per se for a justice to write a book--even a clearly mediocre or unnecessary one, which is generally the kind of book Supreme Court justices write. (To his credit, I think the kinds of books Justice Scalia wrote while on the bench don't fall into this category. Opinions will differ as to their quality, and I have no idea whether he was paid an unreasonable amount for them, but they struck me as serious books for people interested in law. One might say the same thing about Justice Breyer's books, although, again, I don't know whether he was paid an appropriate amount for them. I am frankly and perhaps--albeit unapologetically--snobbishly disinclined to view justices' memoirs, or collections of generally vapid speeches, in the same light.) But I doubt it is honorable to engage an agent to negotiate a large advance for such a book, which almost inevitably will be watered-down pablum (even justices, after all, are expected by major publishers to justify the size of the advance), and which the prospective author knows will be pablum, and then to hawk it up and down the country. It's ethical for justices to talk about wanting to beat the record for the length of a Supreme Court tenure, or wanting to serve a long tenure to show the people who opposed their nomination that they're staying put, and to serve accordingly long tenures. But to actually engage in that conduct is dishonorable. (I say again, in a reversal of the usual phrase, "More Souters." Nineteen years is an honorable span of time to sit on the Court--and the shortest complete tenure in recent memory.) 

I don't mind the ethics debate as such, although its quality is, to say the least, variable. But there's a lot more room for honor or virtue talk when considering these questions. I would like to see more of it, especially from the justices' honor group, which includes lawyers and legal academics. It would be nice if (where this fit one's views) we saw more public discussion in which one says, about a justice whose votes one favors, that their conduct is ethical but dishonorable, and that their compliance with official ethical requirements doesn't render it any less so. We should expect much more from holders of high office than just following the rules. 

Posted by Paul Horwitz on July 28, 2023 at 11:53 AM in Paul Horwitz | Permalink | Comments (0)


My wife and I saw Oppenheimer yesterday. It was our first time in a theater since before the pandemic. As we expected, for an early afternoon showing on a Thursday, the audience was sparse and well distributed in the auditorium. 

The film was every bit as good as the glowing reviews, sticking impressively closely to the historical record. My only concern was that the story might initially be hard to follow for those who were previously unaware of the factual background, although it all becomes clear as the film developed.

I won't recap the story here, on the assumption that is unnecessary for most Prawfs readers, but I will point out a couple of interesting facts that the film skipped over. 

Oppenheimer was represented at the AEC hearing by Lloyd K. Garrison, played by Macon Blair, who was identified only as "one of the best" lawyers in New York. Garrison was indeed an outstanding lawyer, and, understandably omitted from the film, a name partner in the firm now known as Paul, Weiss, Rifkind, Wharton, and Garrison. More interestingly still, he was the great-grandson and partial namesake of the abolitionist William Lloyd Garrison, and the great-nephew of Oswald Garrison Villard, historian and co-founder (with W.E.B. DuBois) of the NAACP.

Garrison was not Oppenheimer's only attorney. Absent entirely from the film was co-counsel John. W. Davis, founding partner of Davis Polk & Wardwell and former solicitor general of the United States. Davis had been the Democratic presidential candidate in 1924. Two years earlier before the Oppenheimer hearing, he had represented South Carolina on the "separate but equal" side in a U.S. Supreme Court companion case to Brown v. Board of Education. He also testified as a character witness for Alger Hiss, so it is pretty obvious why the film emphasized Garrison and left Davis out of it.

Comments are open and will be monitored for relevance.

Posted by Steve Lubet on July 28, 2023 at 08:44 AM | Permalink | Comments (7)

Thursday, July 27, 2023

Supreme Court Roundup Podcast

In case it is of interest, I appeared with several insightful Fordham colleagues (Julie Suk, Abner Greene, and Tracy Higgins) on The Constitutional Crisis Hotline to discuss a set of cases from last term.  The link to the episode is here.

Posted by Ethan Leib on July 27, 2023 at 03:13 PM | Permalink | Comments (0)

Wednesday, July 26, 2023

Bryce Newell's 2023 Meta Rankings of Law Journals

Just in time for the new season (barely).

Posted by Howard Wasserman on July 26, 2023 at 08:16 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Review of Judge Thapar's "The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him"

My new book review is up on Slate, critiquing federal Judge Amul Thapar’s paean to Justice Clarence Thomas.

Here is the gist:

Titled The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, Thapar’s book is nominally a defense of Thomas’ jurisprudence, but the unmistakable subtext is his own claim to be Thomas’ logical successor.

According to Thapar, “cherry-picking” critics have unfairly characterized Thomas as “the cruelest justice,” who favors “the rich over the poor” and the “strong over the weak.” In rebuttal, Thapar just cherry-picks his own 12 cases, showing that “Thomas’s originalism more often favors the ordinary people who come before the Court.”

The manuscript for The People’s Justice was no doubt completed well before the recent revelations about Thomas’ decades of lavish junketing as the guest of billionaire Republican donor Harlan Crow. This inconvenient timing accounts for Thapar’s repetition of the story that Thomas vacations incognito in a motor home and would “rather spend his time in Walmart parking lots than at cocktail parties.”

In his conclusion, Thapar tells us that Thomas knows, “like all originalists, that you cannot fully respect a people unless you respect their choices, too.” This is an odd claim, given Thomas’ frequent votes to invalidate democratically enacted statutes—the Voting Rights ActNew York’s gun control lawCalifornia’s agricultural labor law, and many others—in favor of his own divination of the Constitution’s original meaning. Thomas, says Thapar, tries his best “to figure out what the American people understood the Constitution to mean when they ratified it,” without mentioning that the long-deceased ratifiers were all white, male, and property owners, and that more than half of all Americans had no say at all. Originalism may have its virtues, but respect for living people’s choices is not among them.

You can read the entire review on Slate.

Posted by Steve Lubet on July 26, 2023 at 07:43 AM | Permalink | Comments (0)

Tuesday, July 25, 2023

"The Supreme Court’s excuses for ethics violations insult our intelligence"

My new essay is up at The Hill, explaining how the Senate Judiciary Committee’s vote to advance the Supreme Court Ethics, Recusal and Transparency Act was prompted in part by investigations of Justices Thomas’s, Alito’s, and Sotomayor’s deficient financial disclosures, receipt of extravagant gifts, questionable transactions, or misuse of staff.

Here is the gist:

It is no secret that the Supreme Court Ethics, Recusal and Transparency Act was prompted in part by investigations into several justices’ deficient financial disclosures, receipt of extravagant gifts, questionable transactions and misuse of staff. The full court has consistently resisted adopting such an ethics code, but certain justices’ justifications for their questionable conduct only hurt their cause. 

Their excuses were all remarkably flimsy, almost beyond belief.

The three justices’ hollow rationalizations display a patronizing expectation that the public will ultimately buy whatever they say, no matter how implausible. 

But to paraphrase the late Justice Robert Jackson: Supreme Court justices do not get the last word because they are infallible; they only believe themselves infallible because they get the last word. When it comes to judicial ethics, that has to change.

You can read the entire piece at The Hill.

Posted by Steve Lubet on July 25, 2023 at 10:06 AM | Permalink | Comments (0)

Monday, July 24, 2023

Bar Exam

It could be worse:


Posted by Steve Lubet on July 24, 2023 at 08:41 PM | Permalink | Comments (0)

Missing From the American Coverage of the Israeli Judicial Reform Controversy

The headlines from the New York Times today put the matter succinctly: "Israeli Parliament Passes Contentious Law Limiting Judiciary." "Protest Movement Spurred by Legislation Vows to Fight On." The U.S. coverage of the controversy is entirely Israel-centered, understandably enough, with some discussion of how the controversy is affecting U.S.-Israeli relations. The overall bent of the coverage in the kinds of mainstream, politically liberal legacy press I read for my basic news is critical of the changes and of the Netanyahu government, and describes the battle as one in which "Israel's identity hangs in [the balance]."

What surprises me about all this coverage is how much the story has been treated as purely unique and internal to Israel, except in the sense of its impact on US-Israeli relations, and how little, if any, of the coverage has treated it as relevant for American debates over Supreme Court reform. One may remember that that issue was important enough to some constituencies in the 2020 election that it forced then-candidate and later President Biden to provide the official, time-honored sop of a blue-ribbon commission in order to quiet them down; that the issue certainly did not die down after Dobbs; and that it continues to fuel interesting proposals from important, albeit non-influential, corners of the party. Although the Supreme Court ethics movement and related coverage strikes me as more purely and immediately strategic, targeted, and partisan (which is not to say there's no "there" there; just that whether there is or not is not really the point for many newly enthusiastic groups and individuals), it is of course tied to the longer and larger debate. So you would think there would be a lot more connecting of the dots when an entire country is currently convulsed by actual legislative movement in the direction of judicial reform. (I use "reform" for convenience, setting aside debates over the best term to use.) 

I would think that such coverage and commentary would be interesting in part because it could fuel self-subversive thinking and realignment, pushing reporters and editors out of their customary schemas. One could imagine a story taking a positive angle on the Netanyahu government's success (on the assumption, obviously true, that most mainstream news reporting in the major papers has an angle), on the view that it shows that it is possible for government to succeed in altering the balance of power between the judicial and political departments. Or one could imagine a story taking a more wary or negative view of the Israeli protesters, either because they are interfering with what in the U.S. would be (for some) a cherished goal, or because they demonstrate how many levers those who resist such reforms might push, including some that might offer legitimate cause for concern or criticism. (Given longstanding discussions of the relative partisan skew of the membership of our armed forces, one might think that the threat of Israeli military reservists to stop serving if the Israeli judicial reforms passed would be of special concern here.)

But one doesn't have to imagine any particular angle or story to think the Israeli experience might simply provide interesting food for thought in the context of stories about American Supreme Court reform. Coverage of Supreme Court reform here, when it discusses public opinion, tends to do so at a crude level, asking whether a majority supports some reform or other but not talking much about the intensity of support or opposition or distinguishing much between bare and overwhelming majorities. In the case of Israel, President Biden has urged that for "significant changes" of the sort represented by the Israeli reforms, it is "essential" for the government to achieve "the broadest possible consensus" before moving forward. Surely that view is relevant to the ongoing American debate, and can be the subject of agreement, disagreement, and analysis in the context of American Supreme Court reform. (That view, I should add, seems consistent with the relatively hands-off, low-priority approach Biden has taken to the issue domestically.) If Congress had a majority favoring some arguably constitutionally permissible change to the structure of the Supreme Court and its relation to the political branches, and if, say, 56 percent of the public favored such a change, would it be proper, or precipitate, to go ahead with it? If American soldiers, reservists, or government employees threatened to resign en masse if the change were passed, would that sort of pressure be legitimate or illegitimate, praiseworthy or blameworthy?

I don't, of course, mean to suggest that the Israeli experience maps on to the United States experience with any exactitude. Nor do I mean to suggest there has been no such coverage. That can't possibly be the case. But if it had been even mildly present in the standard mainstream American coverage of developments in Israel, which has been voluminous, it would have been much easier to spot--and I cannot spot it, at least in the major papers and even in their opinion sections. It's a missed opportunity for interesting perspectives on and coverage of both the American and Israeli debates over the judiciary. It's also a rather bizarre absence, even if one takes into account the siloing of domestic and foreign coverage in American newspapers.     

Posted by Paul Horwitz on July 24, 2023 at 12:05 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, July 23, 2023

"Powerful dissent:" the "coruscating guitar solo" of Supreme Court commentary

On the "powerful dissent" question, I would point to two sources to help better understand the phrase, other similar phrases, and their role, which I think of as lying somewhere between actual communicative effort and clearing one's throat, with a heavy added element of demonstrating the writer's status. The first is this glossary by Derek Muller, which helpfully explains "the jargon that usually accompanies Supreme Court analysis."

The second, a little further afield, is a wonderful book, The Rock Snob's Dictionary: An Essential Lexicon of Rockological Knowledge. Although a good deal of it is simply a helpful guide to things and people, often arcane, that rock snobs like to invoke (e.g. Van Dyke Parks, the Nuggets anthology, gated reverb), it also offers helpful information about the kinds of cliches that have been a staple of music critics' writing for years: "Seminal," "angular," "coruscating," and so on. (Co-author David Kamp provides a similar service for film snobs in another fine book.) As Michael Azerrad writes of rock cliches, such jargon "can make a writer feel authoritative—and it can also fool some readers into thinking the writer is authoritative." (The quote is from a book, but the link is to an article about Azerrad in Slate--appropriately enough, since Slate's house style is the confident assertion of dubious authority.) But it can also become mere habit.  

Is the guitar solo actually "coruscating" or "liquid?" Is the song truly "plangent?" Was that concert the writer attended really "incendiary?" Who knows? Sometimes even the writer doesn't. In many cases the writer thinks something like that is true, and is trying to get a sincere message across. Very often, they want to sound as if they have reached a firm judgment, and impress or cow the reader with that fact, even (or especially) when they clearly lack the wherewithal to assert such authority. But often enough this language is just a reflex, like coughing, or a sign of laziness.

"Powerful dissent," like the phrases listed in Derek's glossary, is basically that, but for "Supreme Court snobs"--those whose getting and spending of cultural or financial capital consists of the frequent delivery of evanescent popular or academic commentary about judicial opinions and other legal developments. Such phrases should not be assumed to be dishonest or esoteric. Those who use them may be banal but sincere. These cliches' role in asserting authority, both to overawe the reader and to get ahead in the writers' own status competition, should be noted, and both the authority and the opinion should be treated with skepticism. Beyond that, though, these phrases generally should simply be ignored, and writers should generally omit them.   

Posted by Paul Horwitz on July 23, 2023 at 12:27 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, July 22, 2023

Belkin & Tushnet endorse judicial departmentalism

Aaron Belkin and Mark Tushnet authored an open letter urging Pres. Biden to pursue "popular constitutionalism" where "if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations." They explain:

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.

Continue reading "Belkin & Tushnet endorse judicial departmentalism"

Posted by Howard Wasserman on July 22, 2023 at 12:32 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday Music Post - I Want to Hold Your Hand

"I Want to Hold Your Hand" was the Beatles' first hit in the U.S. As the archetypal rock song, it is interesting to see how often it has been covered as a ballad. Petula Clark's may have been the first, which is at the bottom of the post. 

The clips are at The Faculty Lounge.

Posted by Steve Lubet on July 22, 2023 at 05:43 AM | Permalink | Comments (0)

Friday, July 21, 2023

Not-So Powerful Dissents

Powerful is common adjective for describing a judicial dissent. "Judge X wrote a powerful dissent," or "In her powerful dissent, Judge X said . . ." Unless powerful means "I agree with it," I must confess that I've not read a powerful dissent in many years.

There are problems with using powerful as the way of thinking about dissents. First, if it was so powerful, why was the majority of the Court unconvinced? Second, written dissents are not speeches. Power can be a good way of assessing a speech, but I'm not sure that's true for judicial opinions. Third, power may not be the author's goal. Maybe a dissenting judge wants to be thoughtful or coldly logical. Fourth, modern judicial dissents tend to be long. Length is the enemy of power. Whatever power there is gets dissipated or lost. I'm not sure why judicial culture has evolved to say that dissents must be long while concurrences can be short. But that seems to be the case.

Maybe powerful just means passionate or emotional. Some dissents are more emotional than others. Does that make them powerful? Not necessarily. But that's probably just a matter of taste.   

Posted by Gerard Magliocca on July 21, 2023 at 10:47 AM | Permalink | Comments (0)

Wednesday, July 19, 2023

The Impact (or not) of a Criminal Insurrection Charge

The special counsel may soon bring a January 6th indictment against Donald Trump. One issue that will be discussed when that occurs is the inclusion or omission of a federal criminal insurrection charge. The January 6th Committee issued a referral on that charge, but that does not mean that one will be brought. 

This post is here to say that the special counsel's decision on that point is irrelevant to any subsequent Section Three litigation against the former President. Here's why. Let's say that Trump is indicted for insurrection. Well, he can rightfully say that an indictment is not proof of anything. And there is no chance that a trial on an insurrection charge will occur before his ballot eligibility for the primaries is decided. Now suppose Trump is not indicted for insurrection. That also doesn't matter because no criminal conviction is required for a Section Three disqualification. Plus, the Section Three cases will be civil, not criminal, which is another reason why you cannot compare them to the criminal statute.

Of course, the next indictment might have additional allegations that are of interest. And the indictment might (along with the possible Georgia indictment) persuade some state election officials to bar Trump from the ballot in the first instance.


Posted by Gerard Magliocca on July 19, 2023 at 11:48 AM | Permalink | Comments (0)

Tuesday, July 18, 2023

Michigan Fake Electors Case

Today the Michigan Attorney General brought felony charges against Donald Trump's 16 fake electors from 2020. I would note that two of these individuals hold local office in Michigan and thus might be subject to Section Three disqualification. 

Posted by Gerard Magliocca on July 18, 2023 at 04:30 PM | Permalink | Comments (0)

JOTWELL: Endo on Young & Billings on access to justice

The new Courts Law essay comes from Seth Katsuya Endo (Seattle), reviewing Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Systems, 2023 Utah L. Rev. 487.

Posted by Howard Wasserman on July 18, 2023 at 01:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Et tu, Justice Sotomayor

My new essay at The American Prospect explains why Justice Sonia Sotomayor would have violated the Code of Judicial Conduct – if SCOTUS had a code – by using her court staff to bolster book sales.

Here is the gist:

The latest revelations involve Justice Sonia Sotomayor. According to a report by the Associated Press, Sotomayor’s staff “often prodded public institutions that have hosted the justice to buy her memoir or children’s books, works that have earned her at least $3.7 million since she joined the court in 2009.”

The Code of Conduct for United States Judges, applicable only to the lower federal courts, plainly bars conduct such as Sotomayor’s. Although the Code does authorize speaking and writing on “both law-related and nonlegal subjects,” it prohibits any substantial use of “chambers, resources, or staff” to engage in otherwise permitted financial activities. Moreover, the Code’s official commentary adds that the “publication of a judge’s writings [must] avoid exploitation of the judge’s office.”

The late Justice Antonin Scalia was the author of many books, but he did not require assistance from his Court staff. A source close to Scalia has informed me that the justice “never used law clerks on [his] books, even just to verify quotations and citations.” Sotomayor’s failure to follow Scalia’s example is more proof, if any were needed, that the Supreme Court needs its own Code of Conduct.

You can read the complete essay at The American Prospect.

Posted by Steve Lubet on July 18, 2023 at 06:08 AM | Permalink | Comments (0)

Monday, July 17, 2023

The Grateful Dead and Me

Although Jerry Garcia died in 1995, various versions of the Grateful Dead, featuring former members and other musicians, have continued touring ever since. Next weekend in San Francsico, the latest iteration, Dead & Company, will play the final three shows of what has been billed as their final tour. This seemed like a good opportunity to repost my old Slate article on my interface with the Dead in the summer of 1971.

I Sued the Grateful Dead

I was wrongfully barred from the 8/14/71 show, a legendary scorcher. I demanded to be made whole.



JUNE 04, 2015

The Grateful Dead.

The Grateful Dead, clockwise from upper left: Bob Weir, Phil Lesh, Bill Kreutzmann, Ron “Pigpen” McKernan, Mickey Hart, and Jerry Garcia, circa 1970, United Kingdom. Photo by Chris Walter/Music File Photos

Over the Fourth of July weekend, the surviving members of the Grateful Dead will perform three shows at Chicago’s Soldier Field, the site of Jerry Garcia’s last performance with the band before his death in 1995. Tickets sold out in minutes for what was billed as the “last-ever” appearance by the core four of Phil Lesh, Bill Kreutzmann, Bob Weir, and Mickey Hart, though since the shows were announced there has been some confusion about just how valedictory they are. Still, the fevered anticipation is easy to understand, especially in a certain demographic. Many boomers of my generation, and even people decades younger, are eager to relive their Deadhead days, recalling the many firsts they experienced thanks to the Grateful Dead: first love, first psychedelic revelation, first rhapsodic exhaustion after dancing uncontrollably to a 20-minute guitar jam, first public nudity. And, perhaps uniquely in my case, first lawsuit.

Continue reading "The Grateful Dead and Me"

Posted by Steve Lubet on July 17, 2023 at 02:07 PM | Permalink | Comments (0)

Dr. Glaucomflecken on Private Equity

With a few exceptions in some jurisdictions, non-lawyer ownership of law firms is prohibited by the Rules of Professional Conduct.


Posted by Steve Lubet on July 17, 2023 at 04:53 AM | Permalink | Comments (0)

Sunday, July 16, 2023

What Does it Mean to Be "Totally Misrepresented?"; With a Note on "Beyond the Scope"

Journalist Allison Stewart writes to complain about being cited in Justice Thomas's concurrence in SFFA. She writes that Thomas, who cited her book about Dunbar High School, engaged in a "misreading of Dunbar's legacy." She shares the words of an acquaintance who sent a text saying that Thomas had "totally misrepresent[ed] your work."And she writes, "I, too, was appalled that a book I’d written about the impact of education was used to uphold the Supreme Court justice’s anti-affirmative action argument. We are in a sad moment when cherry-picked information now passes as fact."

Two points about this. First, Stewart's heartfelt article does not, in fact, show that Thomas "totally misrepresented" her work. The passing citation comes in a footnote supporting the general argument--one that represents one of many points of common ground between Thomas and Critical Race Theory scholars and Black nationalists--that Black schools and other Black institutions can be places and sources of independent achievement and success. Thomas takes Dunbar High School as an example, primarily citing Thomas Sowell's work. He writes, citing Stewart's book, "Dunbar produced the first black General in the U. S. Army, the first black Federal Court Judge, and the first black Presidential Cabinet member."

Stewart does not contest the accuracy of the citation; for that matter, she agrees with Thomas that "Black students can achieve." Hence the necessary line about "cherry-picked information" passing "as fact." Even that is inapt. The information may be cherry-picked, but it is fact. Stewart's line would be more a propos if, say, one took statistical data about the effect of a virus on various populations and used it to propound a false factual claim about that virus being "targeted." In this case, however, citing Stewart for the purpose of noting a historical fact about Dunbar's alumni is no more "cherry-picking" as such than it would be to cite a book about the Black Plague for its statement about the number of people estimated to have died of it in 14th century Europe, even though that book is primarily concerned with the social and literary sequelae of the epidemic.

Stewart's actual complaint, it seems, is not that Thomas misrepresented or distorted her work, but that he cited it in the context of an opinion criticizing affirmative action, which Stewart supports. She is entitled to disagree with him, as anyone is, and one can understand her being discomfited or dismayed by the appearance of her book in his concurrence. But I see no misrepresentation.

That point would be barely worth making, were it not for two things: 1) the generally poor level of scrutiny of arguments that support one's own views, such that one can guarantee that Stewart's line about misrepresentation will be both widely shared and quickly inflated into a confident claim that Thomas engaged in falsehood or misstatement; and 2) the degree to which "you misunderstood my work" has itself become a kind of strategic accusation, like arguments about illegitimacy. I do not accuse Stewart of doing this. Nevertheless, I assert that strategic moves of this sort are both relatively frequent and more worrisome for contemporary trust in "fact" than anything involved in Thomas's passing citation of Stewart's book. (Building on other parts of her essay, Stewart might have developed a stronger argument that Thomas's denial that many people contribute to success, and that children deserve support and investment, is a more direct misrepresentation of her work. There are two problems with this, however. One is that it is false; Thomas denies neither proposition. The second is that the point is orthogonal to the question whether that support and investment should come through affirmative action in higher education, or through other means.)  

The other point is that while journalists and scholars are free to dislike it when someone whose policy views they disagree with accurately cites their work, just as artists are free to dislike it when someone they loathe likes their art, and all of us have experienced this in cases that don't involve actual misrepresentation, this kind of thing is a necessary element of good scholarship, just as it is of good art. At least outside of the harder sciences (and possibly there too), and apart from highly narrow factual claims, good scholarship can never guarantee a single set of implications or conclusions, policies or policy consequences. It always leaves open spaces and gives hostages to the future. My own view is that the best scholarship and journalism not only doesn't seek to avoid this: it steers into it, willingly acknowledging and exploring the ways in which the author's findings and recommendations might have perverse or undesired (from the author's perspective) or unexpected consequences, or raise questions about the larger implications of and tensions created by that work. 

One interesting and occasionally dispiriting way to figure out whether legal scholarship meets that standard is to examine the "beyond the scope of this article" footnotes that inevitably crop up in modern articles. One can ask of these notes: Is the question beyond the scope because it exceeds the author's expertise, or because it is not germane, or for some other clearly valid reason? Conversely, is the excluded question clearly germane to the article and clearly within the scope of the author's expertise--but likely to raise unwanted or uncomfortable questions, or make the author's normative claims less attractive? If so, does the author at least give the reader enough detail about what is being excluded, and why it might matter, that the author's refusal to address those questions neither misleads the reader nor prevents the reader from judging the author's refusal? If not, we may be seeing an instance of an author strategically attempting to direct and manipulate the shape and reception of his or her scholarship in a way that, on some core level, renders it a failure as scholarship. Like the novelty claim, the "beyond this scope" note is an essential clue in the critical, rather forensic reading of legal scholarship, a rug under which all manner of dirt may be swept. 

Posted by Paul Horwitz on July 16, 2023 at 12:53 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, July 15, 2023

Another Blow Against "Preferred First Speakers"

From Paul Caron, this news of a successful effort to speak loudly and visibly at the same time as an event that was also and, technically, I guess, solely scheduled to take place at Harvard Law School. The alternate speakers preferred to talk about HLS professor Jody Freeman not talking and, still more specifically, how she must be fired immediately. The specific speech goal of the non-preferred-first-speakers, based on their communications, was not so much to continue speaking indefinitely-but-simultaneously with Freeman, but to "storm" the event and prevent it from taking place. This blow to the bullshit of civility came courtesy of a group called Climate Defiance, a group whose imagination appears to run the contemporary gamut from A to C--speech disruption (or simultaneous-opposite-speech, if you prefer) in the service of laudable and relatively non-specific goals, being really really active on social media, and asking for money. Also supporting the no-platforming counter-speech, if I read the reports correctly, was Extinction Rebellion Boston, which plays essentially the same trifecta and is connected to the inestimable English group Extinction Rebellion, whose founder holds that most valuable of degrees for such activities: a Ph.D in "digitally enhanced political resistance and empowerment strategies." I suppose Climate Defiance could have used the Q-and-A to raise the question why Freeman has not been fired yet, but one imagines that it is not keen on phony procedural niceties of this sort.

I take no position on whether Freeman's conduct is outrageous or on whether the issue of climate change is urgent enough to demand spectacular extra-procedural action. That seems quite beside the point. If the protesters had closed down the event and demanded that Freeman be fired out of anti-Canadian animus or pure sexism, or because it thought her article on agency coordination in shared regulatory space had been unfairly allowed to exceed the usual word limits, or because it thought she was actually this American Ninja Warrior, I don't see how they would be in a different position or have had a weaker justification, equally-preferred-second-speaker-wise. 


Posted by Paul Horwitz on July 15, 2023 at 05:17 PM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - One Offs, Part One

Today's post is a collection of one-offs. I considered using the songs for their own Saturday posts, but I couldn't find enough interesting covers, so I put together a mostly random compilation. I'm not saying there are no other versions, just not enough for an entire post. Part Two will be posted next week.

You can see the clips at The Faculty Lounge.

Posted by Steve Lubet on July 15, 2023 at 05:09 AM | Permalink | Comments (0)

Friday, July 14, 2023

Second Michael Olivas Summer Writing Institutte

Announcement and Zoom info on Faculty Lounge.

Posted by Howard Wasserman on July 14, 2023 at 10:57 AM in Teaching Law | Permalink | Comments (0)

Today Is . . .

Bastille Day (1789):

and Woody Guthrie's birthday (1912):


Posted by Steve Lubet on July 14, 2023 at 05:16 AM | Permalink | Comments (1)

Thursday, July 13, 2023

303 is the new Citizens United

That is, critics will misconstrue what it said, misconstrue its context in an effort to make it more evil (that already is happening), blame it for every bad thing that happens going forward, and treat it as different from every other Supreme Court decision in its potential for lower-court mischief. On that last point: Every incorrect Supreme Court decision (i.e., decision with which I disagree) can spawn new incorrect decisions (i.e., decisions with which I disagree); that is the nature of precedent. 303 critics have seized that possibility to suggest 303 was somehow uniquely wrong--wrong in a way beyond most wrong decisions--such that the Court never should have decided the case at all (because of the above misconstruction of its procedural context).

Continue reading "303 is the new Citizens United"

Posted by Howard Wasserman on July 13, 2023 at 10:27 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Law Students and Ethics [UPDATED]

UPDATE: I have learned that Stanford Dean Jenny Martinez has instituted an investigation into the student who bragged about submitting a false attestation to having completed the mandatory freedom of speech training, and that the investigation will seek to determine whether other students also submitted attestations without watching the video presentation. Dean Martinez did not respond to my email inquiries.


In an earlier post, I criticized the Wharton School's Professor Maurice Schweitzer for this comment about business graduate students, an article in the Chronicle of Higher Education:

“I don’t tell my Ph.D. students, ‘Never plagiarize work, never make up data,’” he said. “I assume that’s obvious.” But in hindsight, he acknowledged that it would have been better to supervise the data collection more closely. “Clearly we need to be more vigilant and less trusting than we’ve been,” he said.

I noted that Northwestern's first-year law students must attend a mandatory program on plagiarism and academic honesty, and, like law students everywhere, they take a required course on legal ethics. But perhaps the instruction is futile.

A recent article in the Washington Free Beacon describes Stanford Law School's "mandatory half-day training session on 'freedom of speech and the norms of the legal profession'" as a "campus joke." According to the Free Beacon,

[T]he promised training wasn't much of a crash course in free speech. Instead, it was an online program that required barely a minute's effort, according to five people who completed the training as well as screenshots and recordings reviewed by the Washington Free Beacon. Students were given six weeks to watch five prerecorded videos, most about an hour long, then asked to sign a form attesting that they had done so.

The videos could be played on mute, and the form—which could be accessed without opening the training—did not ask any questions about their content, letting students tune out the modules or skip them entirely.

More worrisome was the shameless response of at least one Stanford law student:

"I watched none of the videos," one student said. "I never even opened the links. On the day the training was due, I went to the attestation link provided by the university, checked a box confirming I watched the videos, and that was the end of the matter. Whole process took 10 seconds."

Signing a false attestation is among the most serious ethical offenses a lawyer can commit.  Bragging makes it worse. If such conduct is widespread at Stanford, the law school is facing a profound problem. The response to a vapid requirement cannot be lying about completing it. Students who are concerned about mandated law school programs must still complete them; the remedy is complaining or reporting (including anonymously), not falsifying.

The Free Beacon did not comment on the student's admission of cheating, and of course I do not expect a journalist to out his informant. On the other hand, the Stanford administration should immediately take steps to determine, if possible, how many students submitted the attestation without viewing the training.

If nothing else, the entire Stanford student body should be cautioned that false attestation is an honor code violation. Far from a joking matter, similar conduct among lawyers would lead to professional discipline.



Posted by Steve Lubet on July 13, 2023 at 04:59 AM | Permalink | Comments (0)

Wednesday, July 12, 2023

Transference, the Classroom, and the University

I wrote a while back that it would be nice--for us and for readers, and in service of the avoidance of the tedious topic and downward spiral of politics--if, despite our aging status, we posted more at Prawfs about the life of the teacher (and scholar, and renderer of institutional service), which was one of the raisons d'etre and main themes of Prawfs in its first years. On the one hand, we were particularly suited for that topic at the time because we were experiencing it from the ground up; as more senior professors, we are more secure, more complacent, and perhaps more forgetful. On the other hand, as senior professors, we are in a position to write about what we got wrong or misunderstood as junior professors (and what junior folks often may misunderstand or exaggerate as they go through the early career process)--and we are also in a position to write frankly and without regard to consequences, which is how professors should write anyway, at every stage of their careers. So here's a post on that topic. Via The New Yorker, which occasionally manages to surprise, here is a nice piece on "transference and the contemporary classroom."

The author, Merve Emre, notes the long history of connecting the psychoanalytic concepts of transference and counter-transference to the teaching relationship, the relatively brief period in which the "erotics" of that relationship (without necessarily having a specifically sexual connotation) were a frequent and fashionable subject of discussion, and the "uncomfortable climax" that this approach to the subject reached with the Jane Gallop affair, as well as the movements and necessary discussions of the past decade, which combined to put the kibosh on discussing teaching in those terms. (Here is a 2020 piece by a French [naturellement!] philosopher on the general subject.)

Emre's particular interest is in transference: how it continues to function even after we have criticized and dispensed with or sublimated the "erotic" element in favor of other models of teacher-student relationship in higher education. She writes:

Transference, then, is the baby that got thrown out with the bathwater of “the erotics of the classroom,” once that water became thoroughly sexualized and thus taboo. To reinstate it as a useful way of understanding what occurs on campuses requires recognizing what the arguments above do not: that, for the vast majority of teachers, the affective feelings of the classroom are not experienced as romantic, let alone sexual, desire. Those who teach know the variety of roles we can be conscripted into—mother, father, sibling, best friend, therapist, priest, idol, nemesis—just as we know, or at least sense, which of these roles we are willing to play at different moments in our lives, which fantasies of love we will honor and which we will deflate, ignore, or reject. I remember when my former dissertation adviser predicted that, once I had children of my own, I would no longer feel energized by acting as a foster mother to my students. She was correct; now I feel a shudder of unease when a teacher reveals, almost always on social media, that she has baked something for her class, or that she has accommodated an abnormal number of absences or late assignments, in a magnanimous gesture of “care.”

In casual conversation, especially during the pandemic, the emergent discourse of “care,” as a friend suggested to me, has emerged as the positive transferential counterpart of the negative language of “harm” and “trauma.” The teacher’s declarations of care are, at once, a way of soliciting transference-love from her students and a way of permitting herself to respond in kind. Unawareness of transference as a concept means that the teacher can remain not just ignorant of what she is doing but proud of it—of wanting to love her students and to be loved by them in return. Here, countertransference works to mask and to compensate for the disproportionate care work performed by so-called Professor Moms, whose performance of support and service disadvantaged them in assessments of their productivity.

But Emre's goal is not to rest with the basic point that "Professor Moms" are under-compensated for their care--a perfectly valid point that one sees played out in law schools and elsewhere--while leaving in place the assumption that a "care"-based vision of the student-teacher relationship is a good one. She questions that model, and suggests that "the psychological dynamics at play between teachers and students" are at work in many recent campus controversies that we see primarily as free speech or culture-war issues. In the case of Erika López Prater, for example, the adjunct professor who was fired for showing a picture of Mohammed in a global art history class, she suggests that too little attention was given to the complaining student's suggestion that a professor "is supposed to be my role model," a claim she sees as moving but not necessarily correct or without peril. She concludes:

To adjust our language to account for transference could be the first step toward a collective act of growing up. Adjustment does not involve rejection or scorn. It is easy to mock the language of harm and violence, or to dismiss it as “woke.” What is more difficult is to craft an alternative language—a language that refuses to negate the real feelings of dismay that arise when authority figures fail to live up to the fantasies or expectations projected onto them, but that also refuses to describe this failure as an act of violence, or to treat it as a punishable offense.

I don't end up in precisely the same place as Emre, but that's hardly reason not to recommend the piece. It is frank in discussing the ways in which transference and counter-transference, their complexities, and their emotional weight and consequences continue to play out in the classroom, even if we dispense with the language of erotics in favor of one of "care" or "trauma" or similar terms. My own view--consistent with hers, I think, if pitched in a different direction--is that a recognition of the needs of students does not preclude questioning seriously and critiquing any vision of the adult classroom that envisions it as a caregiving or familial space rather than a professional one. Treating it as a professional space cannot mean pretending that questions of care, or of erotics for that matter, disappear from it. They don't. Treating it as a place of care and family, on the other hand, should not preclude recognizing and confronting how dangerous, potentially explosive, and possibly misplaced that language or sensibility is in the classroom--for teacher and student alike. 

The same dynamic is at play in the larger institutional context of universities. I remember arguing with some professorial friends a couple of summers ago about whether it is sound for universities and their presidents, in the statements they so love to offer at fraught moments, to call the university a "family." The air was full of statements about the university "family" that summer. Of course one can argue that the choice of words, as in most official statements, is more or less meaningless, as all statements and press releases arguably are. I don't think it is, if it reflects an actual mistaken vision on the part of administrations. But in any event, we were not arguing on these grounds, but rather about whether the university can be said to be a family. They thought it was correct and utterly natural; I thought it was mistaken and dangerous. A postscript: They were wrong; I was right. Only a family is a family. A university is certainly an institution. And a university can be a "community," whose members' roles and mutual obligations are very close but not familial. But it is not a family, and--as Emre suggests--many campus controversies can be said to involve the perilous and counter-institutional dynamics that arise when it is treated as one. Families deal with controversies in one way; institutions in another. And adopting and trying to follow the dynamic of university as "family" is particularly dangerous--again, for students and teachers alike, as well as for universities as institutions--if, as is too often the case, administrators, for market- and character-based reasons, are weak or cowardly, and thus unwilling or unable to play the backstop role of authority that is necessary in both families and institutions. 

In any event, there's much to be gained from Emre's piece. Enjoy.   


Posted by Paul Horwitz on July 12, 2023 at 01:29 PM in Paul Horwitz | Permalink | Comments (0)

Stupid bigots, smart(er) bigots, and 303

The owner of a Michigan hair salon announced that she would not serve trans customers, advising them to go to a pet groomer. The public response caused her to take her social media private.* From the left, the theme is "what hath 303 wrought?" From the right, the theme is "stop overreacting or misconstruing 303--the plaintiff there and the Court disavowed refusal to serve based solely on identity."

[*] The public exercising their First Amendment rights to criticize someone's offensive speech and conduct? Or censorship and cancel culture? You decide.

As framed, this falls outside any possible good-faith application of 303, because she described it in terms of the customer's identity as trans--a categorical refusal to serve a person because of that person's identity that the Court disclaimed. Some respond with, essentially, "Lower Court Judges Gone Wild"--forget what 303 said, this is what crazy business owners will try to do and what courts in red states will allow them to get away with.

But I do not believe this case depends on a parade of horribles. Instead, it requires a smarter bigot with a better framing. Imagine: "Through my hair styling customized to each client, I use my unique expressive artistry and work closely with each client to help them express themselves and the image they wish to present to the world. And by giving a feminine hairstyle to a trans woman (whom I believe a man as a matter of biology and biblical teaching), I am compelled to send a message that this person is a woman, something I reject." That does not sound meaningfully different from Lorrie Smith making a web site telling the marriage story of a same-sex couple and thereby being compelled to send a message that two people of the same sex can marry.

Dale Carpenter offers a hopeful take on 303: It applies to products and services that are custom-made and expressive where the objection is to the message sent within the product or service. That seems to cover hair styling--it is creative and thus expressive and every hair cut is unique to that person. Perhaps it depends on whether the stylist insists that her styling match perceived gender--she will not give a "male" haircut to a cis person; this might separate the refusal of service from the client's trans identity. Or on the fact that once the client leaves the salon, the stylist's participation is not presented to the world, contra the web site that identifies 303 as the creator.

I appreciate Dale's attempt to read the decision narrowly and agree that the demand for line-drawing in hard cases is not unique to this case. I think this case shows that intelligently framed objections could cut a large swath.

Posted by Howard Wasserman on July 12, 2023 at 01:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 11, 2023

A comment on Northwestern football and student journalism

I stopped watching football about a decade ago, finding the game too gladiatorial. For about five years I maintained a "Northwestern Football" exception, but that dissolved. Nevertheless, the reports of hazing and other misconduct within the program and Fitzgerald's firing sadden me. Fitzgerald was Northwestern football and a successful football team (even if somewhat sporadically) did great things for Northwestern as an institution. I do not know what happened in the lockerroom over the years--my best guess is the stories are substantially true, but how people looked at them ran the gamut, at least until the team stopped winning.

The Daily Northwestern story published on Saturday marked the turning point in this. Prior to that, it appeared the situation would resolve quietly--the university received an investigatory report that found the allegations "largely supported by evidence," suspended Fitzgerald for two weeks in July, and planned to keep the details internal. The Daily story* publicized the details, while opening the floodgates to more stories, more people, and more details.

[*] One of the four bylined authors is a friend's daughter.

Many people frame this as Northwestern's journalism program prevailing over Northwestern's football program or Northwestern's football program being no match for Northwestern's journalism program. This is pedantic, but I do not like the framing. The Daily Norhtwetsern, which reported and published the stories, is independent of Northwestern's Medill School of Journalism (of which I am a graduate). Medill does not run the paper; Daily reporters need not be journalism majors; and most journalism majors (including myself and many of my friends) never worked for it. I do not know much about the publication process or about any faculty input into the publication process, but I expect the students made the key decisions on their own. So I am glad for the praise on student journalists and on the students running the Daily, but separate it from the journalism school.

Posted by Howard Wasserman on July 11, 2023 at 10:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Justice Alito's Naïve Faith in State Courts

Justice Alito's dissent in Haaland v. Brackeen complains that the Indian Child Welfare Act “sacrifices” and “disserves” the best interests of “vulnerable children" because it subordinates what state “family-court judges . . . determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.”  Even putting aside his insulting insinuation that tribal placements are inevitably inferior, any attorney who has spent time in state family courts, as I once did, would know that even the most conscientious judges lack the time and resources to accurately predict how to benefit children in the future.

I develop this point in my new column at The Hill. Here is the gist:

To put it bluntly, a best-interest determination is often a crapshoot, as judges make educated guesses based on their own experiences, preferences and biases. In the cases of Native American children, removal from their tribal homes had historically been little more than legalized kidnapping, which ICWA was enacted to remedy. 

In reality, there is no single best environment for every child, compared to which all others are inferior or victimizing, which a judge can determine with razor-sharp acuity. Despite Alito’s unwarranted confidence, it is nonsense to believe that tribal placements “sacrifice the best interests of vulnerable children.” On the contrary, there is no assurance that state family courts can unfailingly assess children’s best interests, much less weigh their own assumptions against the importance of maintaining a child’s cultural and tribal connections. 

You can read the entire article (not paywalled) at The Hill, including a discussion of the 1858 case of Edgardo Mortara, a Jewish child removed from his family by Pope Pius IX because it was in his "best interest" to be raised as a Catholic.


Posted by Steve Lubet on July 11, 2023 at 02:23 PM | Permalink | Comments (0)