Monday, May 19, 2025

Burton v. Crowell Pub. Co

I'm teaching Advanced Torts this Fall. I've not taught this course for a dozen years, so I decided to start from scratch. One topic that I will cover for the first time is libel. It's more relevant now than it was a dozen years ago. In putting together my syllabus, I came across Learned Hand's opinion in Burton v. Crowell Publishing Co. I'd never heard of this case before. Boy, was I missing out.

The case involved a minor celebrity who was paid to appear in a cigarette ad. One of the photos that was used in the ad contained an . . . unfortunate optical illusion. The celebrity sued for libel and Hand concluded that the action could go forward even though the ad did not impugn plaintiff's character in the way that a traditional libel or slander did. The ad held plaintiff up to widespread ridicule.  That was sufficient, especially when the photo was viewed in connection with the ad's slogan.

Of course, describing the case without the ad would take away all the fun. Below is the ad in question. It's a good reminder that you should also insist on seeing photos before they get published or disseminated.

Posted by Gerard Magliocca on May 19, 2025 at 09:34 AM | Permalink | Comments (0)

Sunday, May 18, 2025

Types of injunctions

A point to elaborate on following the argument and a lot of commentary (including from Nick Bagley in The Atlantic) on the birthright-citizenship case: I still do not believe everyone agrees or understands what we are talking about.

Bagley's summary of the states' argument tees this up. The states (via the NJ SG, former Kagan clerk Jeremy Feigenbaum, who did an excellent job) argued they needed an injunction prohibiting all enforcement as to all people everywhere because people move and New Jersey would have trouble administering programs not knowing whether or when a person is a citizen. This echoes Texas' argument as to DACA--"people move into the state and we would be forced to expend money to give them licenses and other state benefits if the could get status outside of Texas." Bagley points out that, as framed, this is not a universal injunction; it is a broad party-protective injunction.The plaintiff needs that breadth (it argues) to obtain complete relief. By contrast, Bagley argues, a  true universal injunction is one that is "not necessary to provide complete relief to the plaintiffs, but [is] needed to protect non-plaintiffs."

I think we can identify four types of orders four types of orders

1) A party-protective injunction that is no broader than necessary to accord complete relief to the plaintiff--it stops the government from doing X to the plaintiffs.

2) A party-protective injunction injunction that incidentally protects non-parties because it is impossible to protect parties without protecting non-parties. This is the polluting factory, raw-sewage in prison, and legislative districts--ordering the state to create a valid legislative district places every person who lives there the benefits of a valid legislative district. It is not (contrary to what SG Sauer argued at pp. 14-15) school desegregation; schools could remedy the harm to one plaintiff by ordering the school to admit him (but only him) to an otherwise-white school. David Marcus has shown that the 1966 amendments to FRCP 23(b)(2) responded, in part, to courts narrowing the remedies; class actions demanded a broader remedy in which all members be admitted, thus requiring integration.

3) An injunction that protects non-parties because that extra protection is necessary to accord complete relief. This is where New Jersey believes it sits, as Bagley describes.

So # 2 arises when it is logically or practically possible to give the plaintiff relief that does not accord relief to everyone else. That injunction is still non-universal, however, because the incidentally benefited non-parties cannot enforce the injunction (by presenting non-compliance to the court or by seeking contempt). # 3 arises when it would be possible to split the parties from non-parties; the plaintiff then must show that the more-limited remedy does not accord complete relief and that it only gets complete relief with the broader injunction (placing it in the functional position as # 1).

4) An injunction expressly protecting (without actual or purported class consideration) parties and everyone similarly situated, where the defendant's action is not indivisible (# 2) and relief to non-parties is not necessary to remedy the parties. (# 3). That is, the arguments for non-party protection are grounded in considerations of fairness, equality, and uniformity--it is unfair, unequal, and disuniform to to give the benefits to parties and not to similarly situated non-parties.*

[*] Although, as Sam Bray pointed out, they are not similarly situated--one person got an injunction and the other did not.

This covers marriage equality; it covers efforts to strip sanctuary cities or universities of funds. And it should cover individual (as opposed to state) challenges to the birthright-citizenship EO--an injunction guaranteeing U.S.-born X's citizenship gives X complete relief, even if Y's citizenship remains in doubt. Only equality and uniformity concerns (U.S.-born X is a citizen but U.S.-born Y is not) push against that conclusion.

We will see if the Court can keep these straight when it decides the case.

Posted by Howard Wasserman on May 18, 2025 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, May 17, 2025

Saturday Music Post - Let the Good Times Roll

"Let the Good Times Roll" has been the title of several songs, perhaps best known today as the lead track on BB King's 1999 album of the same name. That version, originally recorded by Louis Jordan in 1946, was written by Sam Theard and Fleecie Moore (Jordan's wife). Shirley Goodman and Leonard Lee had a 1956 hit with a completely different "Let the Good Times Roll," often covered in concert by the Grateful Dead. Sam Cooke's 1964 "Good Times" is sometimes titled "Let the Good Times Roll." Don't miss Memphis Slim's "Let the Good Times Roll Creole" at the bottom of today's post on The Faculty Lounge. 

Posted by Steve Lubet on May 17, 2025 at 05:50 AM | Permalink | Comments (0)

Friday, May 16, 2025

Goldsmith on judicial supremacy and universal injunctions

In my comments on the universal injunction arguments, I mentioned the prominent assumption or acceptance of judicial supremacy (really SCOTUS supremacy) by the Court (unsurprising) and the SG. Jack Goldsmith dives into this, concluding that the "government realizes that the price of getting rid of universal injunctions is to pledge respect to Supreme Court precedent so that the Supreme Court, at least, can ensure that government illegality can be stopped in full." That is, judicial supremacy is the cost of non-universality.

I am not sure that is the normatively correct answer. But it correctly describes the state of play in the odd posture and context in which the Court is considering these issues.

Posted by Howard Wasserman on May 16, 2025 at 02:27 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Advisor or Adviser?

Where do people come down on this? I use advisor. The copyeditor on my new book insisted on adviser. That's fine, though (unlike a rule of grammar) I'm not sure how you can determine the correct spelling of a word when two seem acceptable.

Posted by Gerard Magliocca on May 16, 2025 at 09:50 AM | Permalink | Comments (0)

Thursday, May 15, 2025

The ABA standards and regulatory modesty

This post is from Prof. David Yellen of the University of Miami Law School.  Yellen has served as the dean at Miami, Loyola-Chicago, and Hofstra law schools. He has served on the ABA's Standards Review Committee and on the ABA Task Force on Legal Education, in addition to other leadership positions.

I’d like to add a few thoughts to Dan Rodriguez’s recent posts about the accreditation work of the Council of the ABA Section on Legal Education.  Like Dan, I have viewed calls for the replacement of the Council as law school accreditor as misguided.  As Barry Currier argues compellingly, having a national “approver” for bar licensing purposes is essential.  https://barrycurrier.substack.com/. Despite what I view as a very mixed record by the Council, I have no reason to think that a newly constituted entity would represent a significant improvement, to say nothing of the enormous transition costs involved. And I certainly have no confidence in the Trump Administration’s approach to accreditation “reform”.

That said, some of the Council’s recent actions makes defending it difficult.  Derek Muller has explored some of the Council’s overreach.  https://excessofdemocracy.com/blog/2025/5/inside-the-abas-relentless-quest-to-make-law-school-accreditation-more-tedious-and-more-expensive . Most notably, the Council has sent out for notice and comment two proposals that, taken together, would represent the most radical intrusion into the operation of law schools that I can recall. One is a proposal to double the number of required experiential learning credits from 6 to 12.  The other is to mandate tenure or tenure-like protections for all full time law faculty, including clinical faculty, legal writing faculty and academic support/bar preparation instructors.

To start with the “terms of employment,” while I personally support long term contracts and voting participation for clinicians and legal writing faculty (to be honest, I have not thought much about the issue regarding academic support/bar instructors), I have never seen this a legitimate accreditation issue.  It is worth noting that no other accrediting body in the U.S. has any similar provision.  And the proposal may be counterproductive: to maintain flexibility, I can see law schools switching from full time to part time faculty in some of these areas, even if they do not believe that makes sense pedagogically.

It is more appropriate for the Council to consider regulations regarding the academic program itself.  I share the view that experiential learning is essential and believe that requiring 12 credits as a school-based goal is desirable and attainable (by way of disclosure, a bit over a decade ago, as a member of the ABA’s Standards Review Committee, I voted in favor of the current 6 credit requirement).  But the case for a uniform national mandate doubling the current requirement has not been made.

The Council claims that “legal education is significantly behind other professions that require experiential learning.”  As a matter of accreditation policy, however, this is not correct.  It is true that student doctors, dentists and veterinarians, for example, are required to engage in much more experiential learning than are law students. But this is not because of accreditation rules, and the sources cited by the Council memo do not support their position.  Instead, other professional schools require more experiential learning because of culture and licensing requirements. 

This is not a small point.  There are many reasons, both good and bad, that legal education developed in a way that did not originally emphasize practical training. In recent years, law schools have been evolving to place greater value on experiential learning and I hope that trend continues.  Others may disagree. And perhaps bar licensing agencies should/will require more practical training.  In fact, there are some wonderfully creative alternative licensing paths being tried that may eventually send the bar exam to the ignominious end it deserves.  But these developments are happening as the result of thoughtful advocacy and discussion, as well as market forces, not the heavy hand  of an accreditor.

What is the impetus behind the Council’s accelerating overreach?  Some consider it to be “regulatory capture." I resist that label.  I greatly respect most of the people I have known who have served on the Council.  I am confident that they sincerely believe that they are helping to improve legal education.

However, in my view, the Council too often seems to disregard the limited nature of the accreditation function.  As someone who serves on another accrediting body and who has worked with a handful of other accreditors at the university level, I urge the Council to adopt a posture of regulatory modesty and restraint. The Standards should be limited to rules that are reasonably necessary to ensure a quality legal education experience.  They should not be a formalization of what some believe to be best practices. Judged on that basis, the Standards are dramatically more detailed and intrusive than the rules governing any other professional education field. The ABA Task Force on the Future of Legal Education, on which I served, had it right over a decade ago when it urged that “a number of the Standards be repealed or dramatically changed.” The Standards too often burden law schools in ways that raise costs and inhibit innovation.  They need to change direction before it is too late.

Posted by Dan Rodriguez on May 15, 2025 at 08:46 PM in Life of Law Schools | Permalink | Comments (0)

A different scope-of-injunction puzzle

Florida made it a state crime for an undocumented person to enter the state. Plaintiffs obtained a TRO against Attorney General James Uthmeier, the appointed statewide prosecutor, and the state' attorneys for each of Florida's 67 counties, as well as their agents and officers and anyone in "active concert or participation" with them (standard language from FRCP 65(d)(2)). Uthmeier sent a letter to law enforcement agencies, stating that he interpreted the court order not to prohibit law enforcement from arresting and detaining people for violating the law (and presumably turning them over to ICE). The judge then extended the TRO to specify that it reached "any officer or other personnel within any municipal or county police department within Florida, the Florida Department of Law Enforcement, or the Florida Highway Patrol, and any other law enforcement officer with power to enforce" the challenged law. The court then entered a preliminary injunction matching the scope of the extended TRO. And she ordered Uthmeier to show cause why he should not be held in contempt for his cramped reading of the original TRO. For his part, Uthmeier insists that the court's injunction is impermissibly overbroad.

So the question is whether law enforcement necessarily act in active concert or participation with prosecutors. Two issues in this case turn on that: 1) Whether the extended injunction is valid at all and 2) Whether Uthmeier's initial interpretation was so unreasonable as to be contemptuous.

On one hand, stopping "enforcement" of the law means stopping prosecutions; police are not part of the prosecution process. In theory police will not arrest anyone under the law, knowing that the prosecutors cannot pursue charges and thus the arrest is pointless. On the other hand, that is not true in this case. The point of the law is to authorize state enforcement of federal immigration law; police thus are happy to arrest people under the law not for state prosecution but to turn them over to ICE. And even outside this case, police have an incentive to arrest and detain people even if the case will not go anywhere; there is a harassing and chilling effect I am sure they welcome.

Posted by Howard Wasserman on May 15, 2025 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thoughts on the universal injunction argument (Updated)

Transcript here. Lee Kovarsky live-Blueskied the argument and gave a quick end-of-argument summary. I agree with Lee that Justice Gorsuch seemed more open to some universal relief in some cases than expected and that he and Barrett might join Sotomayor, Kagan, and Jackson to allow universal relief in some situations. But it really was impossible to predict. Lee is also adamant that Rule 23 cannot bear the weight non-universalists would put on it.

Other thoughts after the jump:

Continue reading "Thoughts on the universal injunction argument (Updated)"

Posted by Howard Wasserman on May 15, 2025 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 14, 2025

State action on remand

The Ninth Circuit decided Garnier v. O'Connor-Ratliff, holding that the school board member acted under color in blocking people from her Facebook and Twitter feeds. This was the companion to Lindke v. Freed, where SCOTUS set the (in my view too narrow) approach to public officials' social-media pages. The Court GVRed this case in March 2024.

Lindke adopted a two-step approach: 1) Whether the official had formal authority to speak for the government and 2) Whether it did so on that page; the Ninth Circuit found both prongs satisfied as to O'Connor-Ratliff's pages. Board members (especially the Board President) possessed authority to make public pronouncements about the Board's activities. O'Connor-Ratliff's pages looked official, as she identified herself as a Board member and did not include any indicia or disclaimers of the pages being private (as in Lindke). And she regularly made official announcements on there, including the announcements on which plaintiffs sought to comment and for which O'Connor-Ratliff blocked them.

The opinion suggests more play in Lindke's joints than I thought. See if it holds up.

Posted by Howard Wasserman on May 14, 2025 at 05:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

ABA proposed accreditation rule on increasing experiential learning requirements: An idea whose time has not come

Less than a week after a short post urging the ABA Section on Legal Education to keep up its generally good work and encouraging external folks to avoid major changes that could well throw out the baby with the bathwater, the Section has announced its intention to consider a very bad idea from the Standards Committee. This “very bad idea” is the doubling of the required number of credits of so-called “experiential learning” for students to graduate. While I associate myself squarely with those who value the curricular programs, run mainly through law school clinics, and who encourage students to pursue opportunities for experiential learning during my time in law school, the insistence on this once-size-fits all requirement is a bad idea coming at a bad time. First, the imposition of curricular mandates is to be usually disfavored, and especially disfavored in our current times of turmoil. Such mandates are expensive, clinical programs being especially so, given how the labor-intensive work that typically goes into such courses. Given the pressures faced by legal education and, more to the point, by students embarking on their legal careers with the prospects of high levels of debt to meet the tuition demands of law schools, adding to the costs of legal education seems, in a word, foolish. Second, and as has been pointed out before, there are myriad goals law students have in their curricular choices, not limited to bulking up on courses that give students experience in advising and representing clients in traditional criminal and civil disputes. For example, building skills through cumulative learning in a particular subject matter, given their particular professional goals, might be a priority. So too might be following their plan of fashioning an academic career or some sort of career that is not ordinary legal practice, so maybe a business-centered career for which legal education is a major asset, but one not mainly about client representation. Law student curricular choices are zero-sum choices. Curricular mandates have the effect of limiting student options; they simultaneously have the effect of driving law schools to configure their curriculum to meet the conditions of these mandates, with the effect of limiting the supply of other, non-experiential courses.

One potential area left on the chopping block — anticipating a post I have in the works for later — is the area of law & technology, this made up of courses (some experiential, but not all, and maybe not most). This is a burgeoning area of importance and interest and, to a commendable extent, law schools have been introducing into their curriculum courses and opportunities focusing on AI, machine learning, law-tech as part of modern schemes of research, and, interestingly, the ways in which technology can be deployed to help close the access to justice gap. One fears that the insistence on experiential learning which, as the Section has explicitly said, is focused on client representation in a rather traditional sense, will crowd out these novel courses, leaving law schools to play catch up as developments in AI and other aspects of law-tech are changing the way in which law is practiced.

Taking this somewhat away from political strategy, there is the added good sense that would come from reshaping the accreditation system from command-and-control to an iterative dialogue with various stakeholders, starting first with the law schools themselves and including others with whom the ABA Section needs and should want to work with on redesigning its accreditation system for this modern world. And let’s be frank, “this modern world” is one in which there is major skepticism about how educational institutions are managing their business and making their choices. We can believe (as I do) that law schools and universities are for the most part well-intentioned; they design and implement their programs with the best interests of the students and of the profession at heart. At least most of us do and at most times. But we should still believe that there is room for improvement in our programs and there is much room for improvement in how we communicate our values, processes, and strategies to an external world that sees and highlights our mistakes and would hold us accountable for certain choices made and roads not taken. In this hothouse of skepticism, it is exactly the wrong time for the ABA Section to be doubling down on controversial, and I would say essentially misguided, curricular mandates.

Take a beat; take some time for considered reflection on the values and purposes of accreditation; and look for creative ways to work with diverse stakeholders. And in this time, give heavy-handed mandates for what some constituencies insist its The Only and Best Way Forward a rest.

(Reprinted from Daniel B. Rodriguez Substack.  You can subscribe for free on that site)

Posted by Dan Rodriguez on May 14, 2025 at 04:17 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (0)

Do the Justices Have CVs?

Here's a question I've long pondered. At what point are you so well-known in your field that you no longer have or need a resume? For instance, does the President have a CV? A former President? How about Supreme Court Justices or federal Circuit Judges? You could ask the same question about, say, Steven Spielberg, Yo-Yo Ma, or Tom Brady. 

And  how do more modest government officials handle this? Did Todd Blanche update his CV the other day to say "Acting Librarian of Congress?" Does Marco Rubio list "Acting National Security Adviser" and "Acting Archivist of the United States" on his resume now? 

This is what I do when I want a break from grading exams.

Posted by Gerard Magliocca on May 14, 2025 at 11:40 AM | Permalink | Comments (0)

More on State Ratification Records

I noted yesterday the poor coverage of state legislative debates on federal constitutional amendments. Couple of more thoughts on that point:

To some extent, there is a nationalist bias in the ratification sources after 1787. People focus on what was said in Congress. Of course, people also look at newspaper commentary and other sources. But the most state-centered source is generally missing.

The Twenty-First Amendment is a partial exception to my observation about the incompleteness of the state sources. The conventions that ratified Prohibition's repeal did generally keep transcripts. Indeed, this was an advantage of the convention method under Article V that I had overlooked until now. That wouldn't matter today, though, as all state legislatures comprehensively record their debates.

In any event, I'm still going to go through what there is to see what I can find.

Posted by Gerard Magliocca on May 14, 2025 at 08:29 AM | Permalink | Comments (0)

Tuesday, May 13, 2025

Score One For A.G. Sulzberger

I don't read many book-length works by newspaper reporters, for the same reason I read fewer law review articles than I used to: At my age, I consider it reasonable not to suffer through more bad writing than is strictly necessary. Even so, I have long had a pre-order in for Jake Tapper and Alex Thompson's book Original Sin, and today's review in the Times is certainly a nice amuse-bouche before the main event. Discussion of the book takes my recollection back to a briefly popular media-centered discussion from Biden's presidency, centering on whether the Times was being tough on Biden about his age because its publisher, A.G. Sulzberger, refused to give the Times a sit-down interview. Although the whole thing will befuddle those who think, with or without specific reasons, that the Times was always easy on Biden, the Biden administration and some of its apologists were convinced otherwise.

This Politico story gives much of the background. It is relevant, perhaps, to both current criticism of the press for "covering up" problems with Biden and retrospective understanding of how and why the administration did its own covering up, to note that the Politico story, which was published a couple of months before the disastrous June debate, describes administration anger at the Times for Peter Baker's "unrelenting focus on Biden’s advanced age." It is likewise now noteworthy that the story notes Biden staffers' view that the Times's perceived harshness was especially wrong given an upcoming election that they viewed as "a matter of democracy’s survival." So did I, more or less, and I sure do now--and Biden and his staffers could not have failed that test more completely.  

One striking element of the so-called feud between Biden and the Times was the Times's push for a sit-down, on-the-record interview with Biden and the Times. As the Politico piece notes, every president since Roosevelt had sat for such an interview--except Biden, who had "sat for interviews with only two print reporters in more than three years" and never did so for the Times. The story notes:

Getting the president on the record with the paper of record is a top priority for publisher A.G. Sulzberger....But the pleas for an interview have gone nowhere. As Sulzberger often tells colleagues and as he and Kahn have stressed in private conversations with the administration, every modern president since Franklin Delano Roosevelt has done an interview with the Times. That, however, is an argument deemed uncompelling by Biden aides and one that, to some White House officials, smacks of entitlement....In Sulzberger’s view, according to two people familiar with his private comments on the subject, only an interview with a paper like the Times can verify that the 81-year-old Biden is still fit to hold the presidency.

The whole story is worth reading or rereading, for those who are litigating or relitigating all the Biden/age/press issues. Much press criticism is like most cultural and political debate: it starts with the desired conclusion and works backwards. So views on the contretemps tended to follow political lines. But it's certainly worth noting that a great many people took the Biden administration's side, thinking it hoity-toity of the Times to insist on an interview and accusing Sulzberger of bending coverage against him because of it. (Unsurprisingly, one of those people was Margaret Sullivan, a former Times public editor and a terrible press critic. And here's a two-fer, with Sullivan and Dahlia Lithwick. And one from another terrible press critic, Dan Froomkin. Pardon the pun, but those views didn't age well.) Sulzberger denied directing coverage, while insisting that, "For anyone who understands the role of the free press in a democracy, it should be troubling that President Biden has so actively and effectively avoided questions from independent journalists during his term....Mr. Biden has granted far fewer press conferences and sit-down interviews with independent journalists than virtually all of his predecessors." (Another bad press critic, Jeff Jarvis, called the first sentence a "hissy-fit.") 

I'm not a big fan of Sulzberger; the Times is not the paper it should be, and Sulzberger dishonored the paper when he caved to pressure and fired James Bennet. But one must give him his due on this one. The Times and other media outlets will get their share of criticism for possible failings to more aggressively investigate Biden's condition, just as they do and will for failing to more aggressively investigate Trump's condition. But it's hard to do a good job investigating the condition of a man who deliberately shielded himself, and was shielded, from public exposure to anyone who might be unfriendly, or at least indifferent to his wants. Sulzberger was right to push.

I hope this adds a nail to the coffin with regard to the usual euphoric writing about why the partisan, under-resourced, and under-trained "citizen press," or "non-corporate journalists," or whatever you want to call them are a fine and fitting successor to the more staid but more professional standard-issue press. More importantly, I hope it is a useful reminder that every time administrations, from Obama on, have talked about wanting to "speak directly to the people" and not have to communicate through an arrogant, non-substantive, or old-fashioned press, what they actually mean is that they prefer to propagandize in an unmediated fashion. (This is why, although I give Trump favorable marks for speaking to the press regularly, despite his administration's general lack of transparency, I take a star back for his administration's elevation of social-media worshippers, whose fawning questions embarrass even his fans.)         

Posted by Paul Horwitz on May 13, 2025 at 08:33 PM in Paul Horwitz | Permalink | Comments (0)

MLB removes deceased players from permanent ineligible list

General announcement here and letter from MLB Commissioner Rob Manfred to Pete Rose's attorney here. The decision covers Pete Rose, Shoeless Joe and the other Black Sox, and eight other players.

MLB's position has been that permanent ineligibility ends upon death. In the letter to Rose's attorney, Manfred explained that a dead person no longer threatens the integrity of the game and thus his continuance on the list does not serve the purposes of Rule 21. His new move was affirmatively removing Rose and other dead persons from the list, a move to align MLB's rules with the Hall of Fame rule regarding Hall eligibility of people on MLB's list. Because Rose, Jackson, et al. no longer on MLB's list, they are eligible for Hall consideration. The Hall announced that the players would be considered by Classic Baseball Era Committee (pre-1980) for 2027 voting and 2028 induction.

I remained in the no-Hall camp for Rose until his death last fall. But I can live with posthumous induction: "Rose becomes part of the baseball story for all time but does not receive the honors and prestige of--and opportunity to monetize--being a living Hall Member."

Posted by Howard Wasserman on May 13, 2025 at 07:12 PM in Howard Wasserman, Sports | Permalink | Comments (0)

A Note From Justice Souter

In 1999, I had a clerkship interview with Justice Souter. Some time later, I received a thoughtful note from him explaining that he did not pick me.

Until the other day, I assumed that all or most Justices did this for clerkship interviewees who were not selected. But now I'm wondering if Justice Souter was unusual in this respect. I'd be curious to know if other Justices send or sent rejection notes. 

Posted by Gerard Magliocca on May 13, 2025 at 02:54 PM | Permalink | Comments (0)

Same-sex marriage and universal injunctions

A further thought on universal injunctions: Sam's first post unpacks the question of when universal injunctions started, both for the historical pedigree (whether non-party relief has some basis in historic equity or common law) and for when the issue burst on the modern scene.

I cannot prove causation. But I want to make a pitch for the same-sex marriage litigation from 2012-15 as a turning point. Although those cases involved challenges to state law, this was a nationwide litigation campaign of challenges in multiple states. And it exposed the atomized nature of constitutional litigation.

An injunction enjoining enforcement of one state's SSM ban guaranteed marriage licenses to the three or four couples who brought the suit but did nothing for non-party couples. Many states agreed to grant licenses to non-parties, voluntarily complying with judicial precedent giving the injunction universal effect if not force. Alternatively, new couples sought to join cases as plaintiffs and to expand the existing injunction to protect them and guarantee them licenses. Either required steps beyond the original injunction.*

[*] Either move suggested chaos had SCOTUS resolved marriage equality the other way--states undoing valid-at-the-time marriages or states having a small class of married same-sex couples while able to deny licenses to such couples going forward.

The marriage-equality campaign also introduced zombie laws into the mix. The Eighth Circuit affirming the invalidity of Oklahoma's SSM ban did nothing to stop Kansas officials from enforcing that state's ban as to anyone--the decision zombified Kansas' law but did not produce (yet) a judgment prohibiting Kansas officials from enforcing its ban. Binding precedent dictated the result of that litigation--a district court in Kansas would declare that law invalid. But its injunction guaranteed licenses only to the named couples and not beyond. The cycle repeats--other couples must undertake new-or-expanded litigation or states must voluntarily comply with new precedent.

All of this raised the  complaints of inequality and unfairness that universalists fear and that drive current calls for universality in some contexts--officials must grant licenses to the plaintiff couples but could deny them to other couples without violating the court order; Kansas officials could continue to deny licenses despite binding court of appeals precedent (based on Oklahoma's law).

Posted by Howard Wasserman on May 13, 2025 at 12:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Judicial departmentalism and universal injunctions

Sam Bray has a series of posts on universal injunctions in advance of Thursday's arguments on the emergency motions in the birthright-citizenship cases, which are likely to focus mostly on scope-of-remedy. I agree with Sam on pretty much all of this. But I want to riff on one thing. He writes:

In the dispute-resolution model, as long as there is vertical precedent, the Supreme Court still decides questions for the entire federal judiciary. Universal injunctions are inconsistent with the traditional judicial role at every level of the federal judiciary, including the Supreme Court. But there is a sense in which the point is academic for the Supreme Court. It does not need universal injunctions; its holdings already have universal effect as precedent for other federal and state courts. If the Supreme Court eliminates the universal injunction, it will be resetting the remedial practices of the lower federal courts, but it will not be restraining its own decisional authority in any substantial sense.

SCOTUS's resolution is not "universal" in the sense of protecting all people. It resolves one case, affirming or reversing lower courts and compelling them to enter some judgment--a remedy that, per Bray's arguments, is limited to the parties. SCOTUS's declaration of the law establishes universal precedent for lower federal and state courts. In a judicial-supremacist world, it also establishes universal precedent for other actors, having "resolved" the constitutional issue.

Judicial departmentalism complicates this story. Its key premise is that SCOTUS precedent does not bind non-judicial actors; the executive can continue to act contrary to SCOTUS precedent. And because SCOTUS' judgment (or the judgment it orders the lower court to enter) is non-universal, the executive does not violate a court order in acting contrary to that prior case. In effect, we start over--new litigation from the new (actual or potential) enforcement targets, new non-universal judgments from the lower courts (bound to apply SCOTUS precedent), new non-universal SCOTUS affirmance (also applying its precedent). The executive keeps losing, of course (barring a change in precedent). But people must litigate to get there. And we do this as long as the executive has unprotected people to target.

This complicated process might offer a further justification for universality. The federal courts (or at least SCOTUS) must be able to grant universal remedies, otherwise no one is safe from an executive willing to pursue new enforcement against new people (not protected by the existing judgment) in the face of certain judicial defeat. At a minimum, the process is the punishment--the executive achieves something by forcing new and repeated litigation, even if he loses at the end of the day. Especially if some enforcement succeeds (in the moment) against those who are not party to any round of litigation.

On the other hand, non-universality helps prevent judicial departmentalism from collapsing into supremacy. The courts get the final word in any case--the judicial view of the Constitution prevails and the executive loses under existing precedent. But nothing stops the other departments from creating and pursuing new cases.

Posted by Howard Wasserman on May 13, 2025 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The Dismal State of State Legislative Records

In 1970, Illinois wrote a new state constitution (the current one). Article IV, Section 7(b) states:

"Each house shall keep a journal of its proceedings and a transcript of its debates. The journal shall be published and the transcript shall be available
 to the public."

Before this change, the Illinois Legislature did not keep transcripts of its debates. This only started in the latter half of 1971. This leads to a 
rather astonishing conclusion: We have no official records on how the Illinois Legislature viewed any constitutional amendment that was ratified.

When I said the other day that I would start looking at the ratification debates on the modern amendments, I didn't realize that the record-keeping was this bad.
I shouldn't have been surprised, I suppose. Many state legislatures even now are part-time. Transcribing the proceedings was much more expensive before video 
(let alone) artificial intelligence. Still, I thought that since a few states did keep more detailed records in the nineteenth century, surely more would have done so 
in the twentieth century.

State legislatures kept journals, of course. But these rarely included speeches. For example, I looked at the Hawaii Legislature's Journal from 1971. One speech on the 
26th Amendment is there (Was that the only speech? Maybe.) How many states fully recorded legislative debates in 1971? I don't know yet.

Posted by Gerard Magliocca on May 13, 2025 at 07:28 AM | Permalink | Comments (0)

Monday, May 12, 2025

Why Trump Is Going to Lose on Birthright Citizenship

Trump’s executive order purportedly denying birthright citizenship to the children of “unlawful” immigrants comes before the Supreme Court on Thursday on a procedural issue. My new column for The Hill explains why Trump’s lawyer will not be able to defend it.

Here is the gist:

Supreme failure: Trump’s lawyers will flop in arguments against birthright citizenship

by Steven Lubet, Opinion Contributor - 05/12/25 8:30 AM ET

The government’s pleadings repeatedly assert that the children of unlawful entrants are excluded from birthright citizenship under the Fourteenth Amendment’s “original public meaning,” which, according to recent Supreme Court decisions, was “fixed according to the understandings of those who ratified it.”

In 1868, the ratifiers of the Fourteenth Amendment could not possibly have understood birthright citizenship, even under an “allegiance” theory, to exclude the children of “illegal aliens,” because that category simply did not exist at the time.

The first general restriction on immigration, the racist Chinese Exclusion Act, was not passed until 1882. Thus, when the meaning of the Fourteenth Amendment was fixed by its ratification, there was no distinction between lawful and unlawful immigrants. There was only one class of entrants, to whose children birthright citizenship applied without differentiation.

Postscript: Yes, I know that the attorneys defending Trump’s order are not “his lawyers,” but that is regrettably how they see themselves.

You can read the full essay at The Hill.

Posted by Steve Lubet on May 12, 2025 at 02:29 PM | Permalink | Comments (0)

Sunday, May 11, 2025

More Local Issues for Self-Driving Cars

Just to round out this line of thought, let me make a few more points.

First, the irony is that San Francisco does not want to be Ground Zero for the introduction of robot taxis. The City recently sued California (unsuccessfully) arguing that the state improperly overrode the City's concerns about the public safety in giving a broad regulatory authorization to Waymo. The State, of course, can choose to adopt a uniform policy across, say, San Francisco, LA, and San Diego. My view is that each city should be free to fashion its own rules.

I've already mentioned traffic rules and enforcement as a local issue with special relevance to self-driving cars. Another municipal concern is crime. Sometimes a passenger in a Waymo may feel threatened by a pursuing car or a pedestrian at a stop. What's the policy or response for that? What if a passenger falls asleep in a Waymo at, say, 2AM? How should the vehicle respond? What about carjacking? Again, different cities should get to work out different policing solutions.

Then there's the business model for local taxis. Should cities partner with private operators? Run the robot taxis like a bus or subway service? Simply allow private companies to operate under a license. I don't know which of these is best. Let's try them all out.

Perhaps enough countries or states will adopt independent policies such that we can learn what we need to know without devolving power to the city level. The jury is still out on that one.

Posted by Gerard Magliocca on May 11, 2025 at 10:19 AM | Permalink | Comments (0)

Saturday, May 10, 2025

Constitutional Basic Research

When I can find the time, I like to read through some foundational sources to see if I notice something new. I did that earlier this year (with Richardson's Messages and Papers of the Presidents) and paused on TR's Vice-Presidential Inaugural Address. That was the start of my little VP Inaugural Address paper.

My next wander will be though state debates on the ratification of the modern constitutional amendments (XVI--XXVI). I may find nothing useful, but who knows. 

Posted by Gerard Magliocca on May 10, 2025 at 10:20 AM | Permalink | Comments (0)

Saturday Music Post - Southern Gothic

"Delta Dawn," written by Larry Collins and Alex Harvey, is best known for then 13-year old Tanya Tucker's 1972 hit, but it was actually recorded a year earlier by Bette Midler on her first album The Divine Miss M. Midler grew up about as far from the Mississippi Delta as possible in the U.S., in a Jewish family in Honolulu; her professional debut was in Fiddler on the Roof. The Australian Helen Reddy, who grew up even farther from Mississippi, also had a hit with "Delta Dawn" in 1973. Bobbie Gentry wrote and released "Ode to Billie Joe" in 1967. A smash hit, it reached number one on Billboard's Hot 100; remarkably, it also charted on the Adult Contemporary, Country, and R&B lists. Gentry has never revealed what was thrown off the Tallahatchie Bridge. Tony Joe White's "Polk Salad Annie" (or sometimes "Poke Salad") charted at number 8 in 1969. It was a regular feature of Elvis Presley's live sets. Compare them today at The Faculty Lounge.

Posted by Steve Lubet on May 10, 2025 at 05:03 AM | Permalink | Comments (0)

Friday, May 09, 2025

The "Boy" Pope and the Continuing American Gerontocracy

One incidental observation about the new Pope: He is "young." Well, not actually young. But he is "only" 69, with, one hopes (but is far from guaranteed at that age) the energy, well-being, and sharpness of cognitive function to shoulder a burdensome office honorably. (I do not include here the aid of prayer and providence, which I take seriously but are out of my bailiwick.) Born in 1955, Leo XIV is younger at election than any Pope since John Paul II.

By contrast, Joe Biden, whose ongoing, self-negating effort to "burnish his legacy" shows his continuing failure to grasp that it was precisely the chip-shouldered effort to try to use his presidency to build a "legacy" that fatally damaged both the presidency and the election, was born in 1942. Donald Trump was born in 1946. The health and acuity of both is open to serious question. (Cognitive function being an iceberg most of which is beneath the surface, Trump's volubility should not be mistaken for proof to the contrary.) Both men were too old honorably to run or serve in 2016, 2020, 2024, and today. By my lights, two of the current Supreme Court justices ought to retire this year and another two, if they were acting honorably, would have retired several years ago. (I would be inclined to give Roberts and Sotomayor, who at 70 really ought to retire, a bye, given that the current president is an authoritarian, highly corrupt, and creepily obsessed with personal loyalty. But I would note that it's that attitude, combined with the justices' arrogance, the complicity of their family and friends, and the idolatry of their fans that led to this state of affairs in the first place.) Some 20 percent of the House and 30 percent of the Senate is 70 or older. 

No wonder that the new Pope seems like a font of vitality next to these individuals. 

Posted by Paul Horwitz on May 9, 2025 at 12:14 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, May 08, 2025

More campus-speech narratives and problems

Inside Higher Ed (may be paywalled) reports on the latest Republican Converse Auto-Da-Fe.

• The hearing involved the Presidents of DePaul, Cal Poly San Luis Obispo, and Haverford. Haverford President Wendy Raymond--the only female witness (sensing a pattern on this)--bore the brunt of GOP attacks about donuts (read the story--this keeps getting more stupid) and her refusal to disclose any disciplinary action the college took against protesters (prompting one committee member to threaten the school's federal funding, which also requires schools not to disclose student disciplinary records).

• The Democrats invited Georgetown Prof and former ACLU Legal director David Cole to finally explain, for the record, the underlying First Amendment issues:

“The line between protected speech that is antisemitic and discrimination that is antisemitic is a hard line to draw, but it’s a line that our Constitution compels us to draw,” Cole said.

He added, “It’s not a line that I’ve heard a single Republican care about on this committee.”

To draw that line, Congress needed to engage in a fact-finding mission and “determine what actually happened based on often-competing accounts, and then you make a determination based upon those facts,” he said. Instead, the committee has seized upon various complaints, which they have not investigated, and then brought in college presidents to “berate them based on the committee’s version of the facts, which may or may not be true,” Cole said.

This did not stop Elise Stefanik from asking each president whether calls for genocide are protected speech and the presidents from saying that it is (it is not, at least in some contexts).

Cole likened these hearings to HUAC, which pissed off one Republican member who probably cannot see the connection.

• I wonder if these are running out of steam.

• Separate from that, Temple University has been dealing with some stuff, according to a kind-of-vague statement from President John Fry on Wednesday. As far as I can tell, we have: 1) Two students got a bar to put "Fuck the Jews" on a message board at an off-campus bar; 2) a student did an interview with a racist/antisemitic media personality, prompting the university to condemn his statements; and 3) another student, identified with Temple's SJP, in an online video makes "alarming statements related to the United States." The two students at the bar have been suspended; the other two are under investigation and threatened with expulsion; the letter reminds that the university Code of Conduct applies to off-campus conduct.

It is impossible to know what was said in the latter two situations. "Fuck the Jews" is so clearly constitutionally protected (it is not incitement or a true threat and unless the bar had been rented out for a Jewish celebration of some kind, not targeted harassment) that those suspensions cannot stand. Fry's letter reminded of this incident at University of Oklahoma from 2015, in which two frat members were expelled for singing a racist song during a fraternity event--I think the students walked away quietly rather than challenging their expulsions. I wonder if these students might do the same.

A recurring complaint since October 7 and the campus protests has been the failure of universities to punish antisemitic speech as they did racist or sexist or anti-immigrant campus speech. I had hoped that universities learned that they had taken the wrong approach previously and they would respect the First Amendment limits on codes of conduct (however ugly that might be). The Temple case shows at least one school going in the opposite direction.

To be clear--these people are assholes and should be shunned and derided and spoken back to and perhaps even rejected in private social and professional circles--what Republicans and FIRE would call cancel culture. But they should not suffer formal sanction by the state. We have gotten this entirely backwards.

Posted by Howard Wasserman on May 8, 2025 at 04:17 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Pope Leo XIV and Diversity Jurisdiction (Updated)

Must the new Pope renounce his US citizenship, as he is now head of a foreign sovereign? Or can we replace Elizabeth Taylor and Kevin Spacey (whom current students do not recognize) for hypotheticals about diversity jurisdiction with US citizens domiciled overseas?

Update: Under 8 U.S.C. § 1481(a)(4), serving in a position in a foreign government can be an expatriating act if the position requires the person to adopt the nationality of the foreign state or to take an oath, affirmation, or declaration of allegiance. According to a State Department explainer, it requires an intent to expatriate and the Department will inquire into that intent when the position is head of state or head of government. The Foreign Affairs Manual states that "[h]olding a head-of-state, head-of-government, or foreign-minister position may be incompatible with maintaining U.S. citizenship, although the issue has not been expressly decided by the Department." Apparently Golda Meir did not relinquish her citizenship when she became Prime Minister of Israel, although a reader tells me that Israel required recent Americans to relinquish US citizenship before taking government positions).

Update on the Update: The Religious News Service reports that Leo has retained his Illinois residence and voting registration, although he lived in Peru beginning in 2014 and the Vatican since 2023. For diversity purposes, this would present a fun question whether he affected a change of domicile (demonstrated an intent to remain in his new residence). Voting is a big indicator of domicile, weighed against the fact that the Vatican is going to be Leo's new "community." Fun stuff.

Posted by Howard Wasserman on May 8, 2025 at 02:32 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Self-Driving Tickets

Here's a basic issue for self-driving vehicle regulation at the local level. Should they get traffic tickets? If so, should they be judged exactly like human drivers or given some leeway given the state of the technology?

Parking tickets are an easy case. The harder case is a moving violation. I am unclear on the extent to which a self-driving car can recognize that a police officer wants to pull the car over. That may make giving such a car a ticket practically impossible or not worth the effort.

Even assuming that such a ticket is possible simply by taking down a license plate number, how should enforcement discretion be exercised? Many driving situations flow from social cues. There's a funeral going by, so you pull over. An accident occurred and people are seeking to help, so you stop. Self-driving vehicles may not be able (or may not be as good at) identifying these out-of-the-ordinary circumstances. Should they be ticketed or cut some slack?

These are almost always local questions on which reasonable people could disagree. The same goes for many other aspects of self-driving car regulation, as I'll get into later.

Posted by Gerard Magliocca on May 8, 2025 at 07:46 AM | Permalink | Comments (0)

Wednesday, May 07, 2025

Nonsense lawsuits don't help

Eugene Volokh flags a decision dismissing suit by a Jewish UNLV student asserting IIED claims over pro-Palestin/anti-Israel campus protests. The court says the plaintiff failed to allege outrageous conduct or severe emotional distress and that the speech described is protected by the First Amendment. I agree with the analysis (as does Eugene), which should presage the fate for many similar lawsuits. Claudine was right--context does matter and in context a lot of antisemitic campus speech enjoys constitutional protection, however bad or uncomfortable it makes people feel. I am glad this view prevails in court if not in Congress.

The proceduralist in me flags to other pieces of the case. First, the court also dismissed for lack of personal jurisdiction claims against American Muslims for Palestine, which the complaint alleges is a propaganda arm of Hamas that controls SJP and the UNLV chapter of SJP--AMP did nothing to target Nevada.

Second, the court dismisses without prejudice and offers this:

If Gerwaski chooses to amend his complaint, he is advised to plead his claims against AMP and SJP-UNLV in accordance with the First Amendment principles I have described. He is also advised to comply with Federal Rule of Procedure 8(a), which requires only “a short and plain statement of the claim” showing he is entitled to relief and “a demand for the relief sought.” Gerwaski’s FAC contains 51 pages of background material before getting to a five-page “Statement of Facts” that actually pertains to Gerwaski. ECF No. 6 at 52-56. Althoughsome background and jurisdictional information may be helpful, Gerwaski also spends pages describing a national organization’s response to a congressional subpoena, repetitive allegations about the inner workings of various terrorist organizations, and activities at campuses other than UNLV. None of that seems relevant to this case.

Indeed.

Posted by Howard Wasserman on May 7, 2025 at 01:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Dear President Trump: Jealous Deep State Haters and Losers Want to Destroy YOUR Genius, Lifesaving, Nobel-Prize Winning Achievement. YOUR Vaccine.

Dr. Jonathan Howard, a neurologist and psychiatrist in New York City, regularly posts at the indispensable Science Based Medicine. In his most recent foray, he engages his formidable psychology skills to convince Pres. Trump to support broader uptake of Covid vaccines. Let me just say that Dr. Howard would also have made a fine lawyer. Reposted in full with his permission.

Dear President Trump: Jealous Deep State Haters and Losers Want to Destroy YOUR Genius, Lifesaving, Nobel-Prize Winning Achievement. YOUR Vaccine.

Dear President Trump,

I know you are busy working hard to make America great again, and so I will keep this short. In a previous article I wrote:

COVID vaccines are the greatest medical achievement of my lifetime, and Drs. Katalin Karikó and Drew Weissman deservedly won the Nobel Prize for their research. 

I still believe that, and so does every doctor and scientist I know. One study from 2022 estimated that COVID vaccines prevented an estimated 14.4 million deaths around the world.

YOU gave this AMAZING, WONDERFUL vaccine to the world in record time through Operation Warp Speed. No one thought YOU could do it, but YOU proved your doubters wrong once again. Millions of people are alive today because of YOUR vision, courage, and leadership. The success of YOUR vaccine made grown men cry, and many people are saying it’s the best vaccine in history. YOUR name will be etched in the history books as a scientific GENIUS who saved more lives than just about anyone who ever lived. Your ENEMIES and HATERS will never give you credit for this, of course.

Everyone knows that YOU are humble and don’t like to talk about YOUR many accomplishments. However, YOU have every right to boast about YOUR incredible vaccine and to remind people that YOU created it. Drs. Karikó and Weissman would not have won the Nobel Prize if it weren’t for YOU, and many people are saying that YOU should have won it too. YOUR vaccine also earned Pharma companies record profits, but everyone knows YOU are a business genius already.

I know that REAL AMERICANS are pissed off about vaccine mandates, but that had nothing to do with you. Sleepy Joe is to blame for that. You believe in American Freedom, and YOU would never force a vaccine on anyone.

Yet, the FREEDOM we both cherish, and YOUR great vaccine is currently under ATTACK from VANDALS and SABOTEURS in your own administration. The current heads of the FDA and NIH have repeatedly trashed YOUR amazing vaccine, and now they are trying to DESTROY it. These LOW IQ professors from RADICAL LEFT universities can’t match YOUR scientific accomplishments, and they are jealous of your GENIUS. Unlike YOU, their work will never lead to a Nobel Prize, and they’ll never create something worth billions of dollars. They have their own agenda, and they don’t care if YOU or YOUR vaccine get hurt along the way.

People who are supposed to work for YOU have BETRAYED you before, and I am sure YOU don’t want disloyal, ungrateful FRAUDS and LOSERS to undermine YOU once again. It’s bad enough that kids are dying of measles, but the last thing you need is for COVID to return to the headlines for the next 4 years. I know many MAGA Americans also quietly get YOUR vaccine, and YOUR poll numbers, which are the best in history, could suffer if it was taken away from them.

I also know that YOU will stand up for medical freedom and oppose the Deep State actors who want to take away the LIFESAVING, INCREDIBLE vaccine YOU gave the world. They are working against YOU once again. They think YOU are weak and unable to stand up for yourself.

But you’ve proven your haters wrong over and over again. As the most POWERFUL man in the world, and one of the most BRILLIANT men every to live, you can do it all with one quick phone call.

Posted by Steve Lubet on May 7, 2025 at 09:21 AM | Permalink | Comments (0)

Local Regulation of Self-Driving Cars

I want to do some posts about a topic far removed from what I usually discuss. In my Torts class and in some talks, I've developed an idea about how autonomous vehicle usage should be regulated. My argument is that cities should be given broad discretion to develop their own rules for self-driving cars. I mat write this up in a formal paper later this year.

Let's start by thinking about this problem broadly. Traffic regulation is generally a local function. Setting speed limits, thinking through parking rules, choosing where to put a stop sign or a traffic light, and so on. Enforcement is also generally local. Why is that? Because it's hard to have a one-size-fits-all traffic system given variations in weather, traffic patterns, road conditions, and many other factors.

Self-driving vehicles present an especially good case for local regulation in many respects. It's a classic example of an experimental technology where we need many different approaches tested. Permitting each city to set up its own regulatory framework would mimic how the market tests a new product by giving many variations a chance and seeing which one works best over time. 

Finally, self-driving vehicle adoption depends in large part on earning the trust of the public. People will be uncomfortable with robot cars for many years, but that would be easier to manage if the community could limit or dictate how often and where they are used. The vehicles must interact with bike riders, with pedestrians, with other cars, and with first responders. State and national governments are not in a good position to set these sorts of policies to build trust and comfort.

Next time I'll talk about some specific issues with self-driving cars and local government authority.

Posted by Gerard Magliocca on May 7, 2025 at 07:08 AM | Permalink | Comments (0)

Tuesday, May 06, 2025

MAGA and the First Amendment

Trump during a press availability today: "I think people are allowed to protest. You have to do it in a reasonable manner. Not necessarily friendly, but reasonable. Otherwise Pam will come after you and you will have a big problem."

The reporters in attendance laughed. And the Professional Jewish Community cheered. And so did the people who broke into the Capitol as "tourists."

Posted by Howard Wasserman on May 6, 2025 at 05:20 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Warren Buffett and the Law

Warren Buffett recently announced his pending retirement. One of his many aphorisms about investing is that the stock market is a voting machine in the short run and a weighing machine in the long run.

I think that law can be understood in similar terms, though perhaps more so for constitutional law. Food for thought. 

Posted by Gerard Magliocca on May 6, 2025 at 03:24 PM | Permalink | Comments (0)

Chaos and merits

SCOTUS stayed the injunction barring enforcement of Trump's plan to bar trans people from the military. Sotomayor, Kagan, and Jackson dissent. No statement from anyone. This is, in essence, the death knell for trans people currently in the military--they will have been discharged before any final resolution.

The case demonstrates the dominant role that the merits play on the shadow docket. The balance of equities should weigh against a stay because every trans person will be discharged before this case can be resolved in two years, clearly a greater burden than the government having to abide the status quo (trans people serving) for a couple more years. And rejecting the stay is less likely to create chaos if the injunction were affirmed and the military had to re-enlist (or provide backpay) to all the people it discharged. But the majority must believe the order constitutionally valid, so that wins out--there is no good reason to make the government wait to enforce (what the Court plans to find to be) valid policy.

The other question is what this means for other anti-trans orders. Was the majority so certain of validity because this involved the military and the deference that receives? Or does this reflect a more general position within the majority that anti-trans discrimination is rational and permissible?

Someone (sorry Paul, don't remember who) wrote that the Court's approach to stays pending appeal changes with the administration--Biden's Administration cannot enforce anything until SCOTUS finally declares them valid; Trump's Administration can enforce everything until SCOTUS finally declares them invalid. There might be some truth to that, at least in effect.

Posted by Howard Wasserman on May 6, 2025 at 02:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, May 04, 2025

Zick on the First Amendment Watch

Tim Zick (Wm & Mary) has launched Trump 2.0: Executive Power and the First Amendment at the First Amendment Watch at NYU's Carter Journalism Institute. The site, which Tim will update weekly, provides documents, news, and commentary on the various Trump EOs and their First Amendment issues.

Worth checking in as the EOs and lawsuits multiple.

Posted by Howard Wasserman on May 4, 2025 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, May 03, 2025

Kentucky Derby predicts America's future

Sovereignty beat Journalism. Render Judgment finished 17th.

We are in trouble.

Posted by Howard Wasserman on May 3, 2025 at 07:31 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Saturday Music Post - Paint It Black

In 1966, "Paint It Black" was the Rolling Stones' first song featuring the sitar, and only the second by a rock group with sitar (after the Beatles' "Norwegian Wood," which was not released as a single). It charted at number one in both the U.S. and UK. With lyrics and melody by Keith Richards and Mick Jagger, it also marked the increasing marginalization of Brian Jones as the Stones' leader (although it was Jones who devised and played the sitar part). "Paint It Black" It was the opening track on the U.S. version of the Aftermath album, the Stones' first with all original songs. You can hear it with and without sitar at The Faculty Lounge.

Posted by Steve Lubet on May 3, 2025 at 04:55 AM | Permalink | Comments (0)

Friday, May 02, 2025

ATL Law Revue Video Contest

The finalists are in, including my students Spice Girls parody. Vote early, vote often.

Posted by Howard Wasserman on May 2, 2025 at 03:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, April 30, 2025

Look What I Found in a Used Copy of "One Heartbeat Away" that I bought on Amazon for $9

Posted by Gerard Magliocca on April 30, 2025 at 09:51 AM | Permalink | Comments (0)

Tuesday, April 29, 2025

Calls for COSELL & Equality Law Scholars Forum upcoming conferences

Doron Dorfman and Tim Glynn to host the 20th Annual Colloquium on Scholarship in Labor and Employment Law (COSELL) at Seton Hall Law School on September 19-20, 2025!  The Call for Presentations and further information regarding transportation and lodging can be found here. 

Please note that the deadline for submission of abstracts is July 15, 2025.  For information about COSELL, please visit its official website.

and -----

Tristin Green, Angela Onwuachi-Willig and Leticia Saucedo announce the call for proposals for the Seventh Annual Equality Law Scholars' Forum to be held at LMU Loyola Law School in Los Angeles, November 7-8, 2025. Proposals (3-5 pages) are due to Leticia Saucedo ([email protected]) by May 15, 2025. More details here: www.lls.edu/media/loyolalawschool/....  Please feel free to circulate widely to junior scholars who you think might be interested!

Posted by Orly Lobel on April 29, 2025 at 02:36 PM | Permalink | Comments (0)

A Visit to Bhutan, Land of the Thunder Dragon and Gross National Happiness

Bhutan has one law school, and it may be the most beautiful law school I have ever visited. Here is a short article about a very memorable trip and talk about development, tech, democracy, and happiness. 

SAN DIEGO (April 29, 2025) - Nestled in the eastern Himalayas between China and India, Bhutan is a small, landlocked kingdom renowned for its stunning natural beauty and deep-rooted cultural heritage. Often referred to as the "Land of the Thunder Dragon" ("Druk Yul"), the dragon appears on the national flag. Bhutan boasts dramatic landscapes ranging from lush subtropical plains to steep, snow-capped mountains. Its commitment to preserving tradition is reflected in the country's unique philosophy of Gross National Happiness (GNH), which prioritizes spiritual and environmental well-being over economic growth. With its ancient monasteries, vibrant festivals, and strong sense of national identity, Bhutan offers a rare glimpse into a way of life where culture and nature exist in harmony.

In recent decades, Bhutan has undergone significant political and economic transformations. Transitioning from an absolute monarchy, the nation adopted a constitutional monarchy in 2008, introducing parliamentary democracy. Bhutan also faces contemporary challenges, including rising youth unemployment and increased emigration.

In April, Warren Distinguished Professor of Law Orly Lobel was invited to Bhutan’s only law school, JSW Law - in English forming the acronym Justice Service Wisdom. It was established through a Royal Charter on February 21, 2015, by His Majesty King Jigme Khesar Namgyel Wangchuck as a gift to the people of Bhutan. The King appointed Her Royal Highness Princess Sonam Dechan Wangchuck as the Founding President of Jigme Singye Wangchuck School of Law by Royal Decree in 2017. The core objective of the law school is to provide legal education, facilitate research in law and related fields, promote cultural enrichment and continue traditional values. 

While at the law school, Professor Lobel toured the campus with Research Dean Professor Sonam Tshering and delivered a lecture based on her latest book The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs). The book has been named an Economist Best Book of the Year and has been translated into foreign languages, including most recently into Chinese. The book describes the opportunities alongside risks that AI and digital technology can bring and provides a rich and fascinating blueprint for how to best design and leverage technologies of our future for the well-being of all, including in health, work, education, justice and democracy. Professor Lobel discussed how these insights are particularly important when considering smaller countries with scarce resources like Bhutan. For example, she discussed with the law faculty and students an initiative that Bhutan is developing, with Japanese technology, called BuddhaBot, which uses LLM chat bot to help spread knowledge about buddhism. 

During her visit, she also had the opportunity to meet with various dignitaries including the former Minister of Health, Dechen Wangmo, who served as the minister during the COVID pandemic. Bhutan faces the challenge of increasing the number of doctors and health care professionals to match the World Health Organization rate per capita standards. This aligns with the research in her book The Equality Machine of how AI can help tackle access to health and medicine, as well as justice and education particularly for developing countries.

She also met with Jacques von Benecke who serves as the Group Chief Technology Officer for Druk Holdings & Investment and the Chief Technology Officer for the Bhutan National Digital Identity company. Mr von Benecke consults for the Government as a member of the Bhutan Government Technology Commission, the Bhutan representative of the ITU - Government Consultative Committee (GCC), and the Bhutan Government Liaison for Ayra. Professor Lobel discussed with him the recent development in Bhutan’s digital transformation and how research on human-machine trust and responsible AI can help facilitate these important processes. 

“It was a great honor to visit this beautiful country and its wonderful people. I enjoyed learning about Bhutan’s significant environmental and cultural preservation efforts alongside its fast moving technological development, together carving a path to support individual flourishing and economic growth. The faculty and students were greatly insightful and inspiring. I also had an amazing time hiking Tiger’s Nest Monastery, an awe-inspiring climb, exploring the capital city of Thimphu and the serene town of Paro, where I was fortunate to attend the vibrant Paro Tshechu festival—an unforgettable celebration of Bhutanese culture, music, and masked dances set against the backdrop of the Himalayas.”

Posted by Orly Lobel on April 29, 2025 at 02:28 PM | Permalink | Comments (0)

Motions to Strike in Action

Courts do not often strike (on motion or on its own) under FRCP 12(f), especially  an entire pleading. So this one is making the rounds and likely to appear in Civ Pro classes next year:

Plaintiff filed a § 1983 action, represented by Dragon Lawyers, P.C., whose firm logo is this:

The Complaint contained that logo as a watermark and a label on every page. The court was not amused--it struck the pleading, stating "[u]se of this dragon cartoon logo is not only distracting, it is juvenile and impertinent. The Court is not a cartoon."

The watermark is one of several mistakes that jump off the page. It misnames the court in the caption "District Court for the United States of America." And it asserts an 8th Amendment claim in a case arising from pretrial detention.

It is tempting to blame this on Trump and his minions and the Twitterfication of public policy--a pleading version of what Stephen Miller and his ilk do everyday. But lawyers have done stuff like this for years. Technology allows them to do it on another level.

Posted by Howard Wasserman on April 29, 2025 at 10:20 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, April 28, 2025

So this is what the law firms bent the knee to do

See § 2 of the latest play-acting bumptious dictum from the White House:

Legal Defense of Law Enforcement Officers.  The Attorney General shall take all appropriate action to create a mechanism to provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities for actions taken during the performance of their official duties to enforce the law.  This mechanism shall include the use of private-sector pro bono assistance for such law enforcement officers.

So now we know what Paul Weiss, Wilkie, Skadden, at al. committed to spend $ 100 million--defending cops who shoot people, even where their employers already defend them. Trump does not want to provide counsel to people who usually do not get it; he wants to save police departments from the cost of even having to defend these guys. Note the system it creates: Cops pay nothing (protected either by QI or indemnification); cities pay no damages (too hard to prove a Monell claim); cities and departments do not pay defense (or insurance) costs, now borne by these law firms.

Congratulations, Quislings. I am sure this is what you meant by a shared commitment to "ensuring the fairness of the justice system."

Posted by Howard Wasserman on April 28, 2025 at 08:13 PM | Permalink | Comments (0)

Vice-Presidential Inaugural Addresses--Now Live!

Here is my bagatelle on a subject that you didn't know existed.

Posted by Gerard Magliocca on April 28, 2025 at 07:45 PM | Permalink | Comments (0)

...and Narcissistic, Megalomaniacal, Anti-Constitutional Presidentialism

The first time, I had two things to do—run the country and survive; I had all these crooked guys. And the second time, I run the country and the world.

This quote will be shared often and tediously. Nevertheless, those who study the Constitution and retain some loyalty to it should still take note of it and retain their capacity for astonishment, the absence of which is the surest sign that one is either dull-witted or has willingly fitted himself for the abbatoir.

One does not, in sooth, expect Donald Trump to have either much knowledge of the Constitution or the slightest interest in it, both points that I take it are viewed as positives by many of his mass of supporters. ("Supporters" as opposed to his voters, whose individual reasons to vote for him and whose expectations surely vary widely. And "mass" as opposed to his supporters in the intelligentsia, who appreciate Trump not for his "ideas" but, variously, for his willingness to offer this or that transactional good for which they have a high-intensity preference and are willing to ignore a few principles and scruples to see it achieved; for the personal benefits he may provide them, or the whips he may use on their perceived enemies; for his provision of some ersatz form of post-liberalism as a kind of entertainment, from whose devastating real-world effects they are largely insulated by wealth and tenure; or for his skills as a wrecker, which they imagine will clear the ground for the fantasy regime they eagerly await.) Normally, Trump supplies the desire, whim, ignorant belief, or impulse, or the perceived slight to which he is responding. It is left to whatever semblance of a lawyer, expert, or intellectual can still be found--in, as the line goes, the nearest gutter--to fit that impulse to a form of words, a dangerous, overly capacious, formerly-disdained, and/or dishonestly* misinterpreted statute, a tyrannous interpretation of constitutional text, later-acquired facts or allegations, a pretense of a vision or philosophy, or, often enough, an inconsistent, ever-shifting, or revisionist set of pretended justifications for whatever it is he just wants to do.   

For this reason, whatever else one might think of his garrulity and lack of restraint, the fact that he has turned Twitter and TruthSocial into the semi-official means of government communication, and the fact that he thinks and speaks with the frequency and intellectual limitations one has come to expect of social media addicts, we should be grateful for his logorrhea in this instance. With or without a theory of a unitary executive on steroids, Donald Trump's constitutional vision is what Donald Trump--not his mouthpieces, apologists, or supplicants--say it is. If you want to know what the Khmer Rouge wanted, you don't ask the ghost of Malcolm Caldwell; you count the damn skulls. So I am in this sense grateful to Trump for offering a clear, succinct, and precise account of what he thinks the presidency is, what he thinks of Congress and the states, what he thinks of the Bill of Rights, what he thinks conservatism is, and what he thinks of every other country on the planet. Doubtless I would have disagreed with and opposed him on many things, but all things considered I would have preferred President Franck.  

One notes in passing that, as is to be expected, Trump manages multiple lies and errors several times even in so short a span of words. And that the people he slanders as "crooked" were, in many cases, precisely the ones who made some measure of lawful and competent government possible in the 2017-21 Trump presidency. In their absence, we have only the man and his words, which we are now obliged to take both seriously and literally.

*The most striking thing about AG Bondi's memo last week rescinding the Biden administration's policy against issuing subpoenas to journalists was not the fact of the rescission, nor did it have anything to do with its legality, its open and vulgar partisanship, or even the Trump regime's general hostility to mediating institutions of all kinds. It was the fact that Bondi's memo cited, as an example of "unauthorized disclosures that undermine President Trump's policies," this very news story, which reported that the Trump regime's basis for an invocation of extraordinary coercive power was a knowing lie. Judges considering the degree of deference they owe to the justifications and purported facts proffered by the regime, and the degree to which they should presume any regularity on the part of the regime, are, I'm sure, aware--and certainly can and should be--of the extent to which its law enforcement apparatus's policies and actions are designed to enable it to lie to the courts, among others, without the inconvenience of contradiction by the truth. 

Posted by Paul Horwitz on April 28, 2025 at 02:18 PM in Paul Horwitz | Permalink | Comments (0)

Evan Bernick on "How Not To Teach Criminal Law"

Thanks to Will Baude, I came across this short essay by Prof. Evan Bernick (NIU College of Law). The paper is part of a symposium and is called "How Not To Teach Criminal Law".  Here is a bit from the abstract:

I teach something called "criminal law," which doesn't exist but which many people believe does exist. And so, I must be skilled in contending. The descriptive gap between the realities of criminalization and the content of the conventional 1L criminal-law curriculum is no less horrifying than Charybdis's maw. When teaching, I navigate between representing criminal law as existing, raising skeptical doubts about its existence, and questioning whether anything like it might be justified, if it did exist. I do this because I think I owe it to my students to teach what is and is not, and to raise questions about what ought and ought not be. So, I teach criminal law-and I also try not to.

Interested readers might also want to check out the late Jeffrie Murphy's essay, "'In the Penal Colony' and Why I am Now Reluctant to Teach Criminal Law."

Like Prof. Bernick, I also teach - last Fall was my 20th time -- "something called 'criminal law.'" I love it (although I'm not a Criminal Law scholar; I've written a few things about capital punishment and punishment theory). To be sure, as Prof. Bernick describes, teaching the first-year class (I also teach some upper-level electives on Criminal Law topics) requires one to address the . . . disconnect between the "General Part" stuff that is that class's focus and the realities of policing, prison conditions, plea bargaining, discrimination, poverty, overcriminalization, and so on. (I thought Prof. Bernick's discussion of "criminalisation" was particularly interesting.) And, there is no doubt that the typical first-year class spends more time on homicide, and less on, say, drugs and guns, than "the real world" of criminal-law practice involves.

My own view continues to be, though, that "Criminal Law" "exists" (as much as any other first-year subject does, anyway!), is justified, and should be taught to law students for reasons that go beyond preparation for bar examinations. As I see it, a political community may and should identify some morally blameworthy acts as crimes and punish appropriately those who commit such acts and the enterprise of identifying these acts and punishing those who commit them is one that law students should study (notwithstanding the "disconnect" mentioned above). Some reasons law students should study it might seem a bit pedestrian and familiar: it is good for first-year students who learn how to read, interpret, and apply statutes; to appreciate early on the importance of notice, clarity, prospectivity, legality, and lenity; and to learn to think "elementally". In addition, though, I think it is (or, can/should be) an opportunity for underscoring (again, notwithstanding the "disconnect" mentioned above and the pathologies and problems we are familiar with and that Prof. Bernick emphasizes) the fact that the Criminal Law is not simply a list of directives and prohibitions aimed at persons; it is also (or, it should be) a crucial reminder that the infliction, form, and severity of punishment by government stands in need, always, of justification and constraint.

Anyway. Check out the Bernick (and Murphy) essays.        

Posted by Rick Garnett on April 28, 2025 at 02:12 PM in Criminal Law, Rick Garnett, Teaching Law | Permalink | Comments (0)

It’s not just Trump: Federal judges are also targeting universities

My new essay for The Hill explains how 13 federal judges prefigured Trump’s attack on higher education almost a year before Trump, violating multiple provisions of the Code of Judicial Conduct, while their colleagues have been unwilling to do anything about it.

Here is the gist:

It’s not just Trump: Federal judges are also targeting universities  

President Trump’s assault on higher education is unprecedented in scope and impact, but not unprecedented in concept. A group of 13 federal trial and appellate judges beat him to the punch by almost a year.

Trump has used the extraordinary powers of the executive branch to freeze billions of dollars of funding for seven leading universities, demanding changes in their curricula and administration. The judges were more selective, targeting only Columbia University, while foreshadowing the same educational intrusion that Trump later deployed with a vengeance.  

On May 6, 2024, the judges sent a boycott letter to Columbia’s then-president, calling the university “ground zero for the explosion of student disruptions, antisemitism and hatred for diverse viewpoints,” where “disruptors have threatened violence, committed assaults and destroyed property.”

On Mar. 7, the Trump administration announced, using strikingly similar language, the cancellation of approximately $400 million in federal grants and contracts due to Columbia’s “continued inaction in the face of persistent harassment of Jewish students,” including the failure “to stop radical protestors from taking over buildings on campus.”

Trump is a wrecking ball, with no regard for norms, conventions or past practices. We expect judges to be more judicious. We especially expect them to comply with the Code of Conduct for United States Judges, which prohibits leveraging clerkship appointments for extra-judicial objectives.

Trump surely did not need the example of a judicial boycott to embark on his campaign to remake higher education in his own image. Federal judges, on the other hand, should be embarrassed by their participation and endorsement of such proto-Trumpian tactics. 

You can read the entire essay at The Hill.

Posted by Steve Lubet on April 28, 2025 at 01:40 PM | Permalink | Comments (0)

Trump/Somoza Presidentialism

The Wall Street Journal, which has been doing a bang-up job covering the administration, has an excellent story on "The MAGA Lobbyists Upending Washington With McDonald's and Bear Hunting." The headline is worth setting out because nicely captures the vulgarity of what the piece describes. To be sure, this is not surprising, matchless vulgarity being the house style of the regime. (Those Democrats who have emulated this style intentionally, and those who actually are vulgar and not just putting on an act, are fools and are dishonoring themselves.) The only problem with the headline is that one might read it as being about lobbyists who have cultivated new friends, as opposed to friends or relatives of the Trump regime who have decided that the best way to monetize their friendships is as lobbyists-- or, as the story ultimately suggests, that it's about people who are unequal measures of both.

At a higher level of abstraction or fatuity, one could obviously say this is nothing new. ("Take a deep breath," as the saying goes, although I will note that the same words are spoken right before a ship sinks.) As the story also suggests, however, that's not really correct. The argument against lobbyists being pure, vulgar influence peddlers has always been that at their best they can provide specialized, knowledgeable information about the value of their industry or the policy they advocate, the consequences of some proposed course of action, and so on, with the assumption, generally warranted under conditions of ordinary government, that many of the the people they are talking to are equally expert and experienced congressional staff and civil servants. The model on display here is the vulgar influence peddler model. The Journal puts it more diplomatically: "Job credentials that mattered in the past are increasingly irrelevant today." The big comers are not those bringing expertise, but those who wield influence-by-acquaintance: "hyper-connected Trump firms," where the connection may or may not include knowing anything useful but definitely includes being a hunting buddy of the president's son. (This piece, by one of the nation's several million play-journalists and "influencers," further illustrates the point. It is utterly credulous but useful in being so...well-connected. It provides a useful account, if one reads between the lines a little.)

This approach to lobbying as a pure, simple matter of proximity to friends and family and other members of the Boss's coterie is hardly new in the United States, as the embarrassing career of Hunter Biden illustrates. But neither is it the norm or the sum total of the activity of lobbying, or at least so one would have said prior to late January. It is, however, standard fare for corrupt authoritarian, personalist (and see here), mercantilist, clientelist, etc. regimes. (Wikipedia sometimes really comes through splendidly: "Personalist dictators typically favor loyalty over competence in their governments and have a general distrust of intelligentsia. Elites in personalist dictatorships often do not have a professional political career and are unqualified for the positions they are given....[P]ersonalist dictatorships are more prone to corruption than other forms of dictatorship.")

Reading the story, I was reminded of the Somoza family in Nicaragua, of Putinism and Peronism, of Kazakhstan, Turkmenistan, and Belarus under Lukashenko, of Maduro's Venezuela, and of Nazi Germany. If public law scholars--and judges--want to keep abreast of things, they would do better to read Erica Frantz, Luca Anceschi, and Natasha Ezrow than Story, Blackstone, Coke, or Cooley.   

Posted by Paul Horwitz on April 28, 2025 at 12:03 PM in Paul Horwitz | Permalink | Comments (0)

Creative project blows up

I have written about the creative projects students do for Civ Pro. This year's batch included song parodies by two gifted singers, a picture of Twombly and Iqbal walking Conley to his retirement, a large movie poster featuring figures from the pleadings we work with, quite complicated board games, and many pictures of monkeys (I still use the complaint in the "Monkey Selfie" case).

But one song parody is getting a fair bit of love on TikTok (best of all, it is a song I actually know).

Posted by Howard Wasserman on April 28, 2025 at 09:12 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, April 26, 2025

Saturday Music Post - Celtic Classics

"The Bonnie Banks O' Loch Lomond" is a traditional Scottish song, with various adaptations dating to the eighteenth century. The "low road" refers to death, of either a lover or the executed soldiers in Bonnie Prince Charlie's 1746 rebellion against the British Crown. "Oh, Danny Boy" is an Irish lament, likely for a son gone off to war, with lyrics written by English lawyer Frederic Weatherly in 1910, and set to the traditional balled "Londonderry Air." Both the Scots and the Irish have many rousing melodies, but two of the most famous are these sorrowful tunes. There are almost limitless versions -- solo, chorale, instrumental, and even rock.

Don't miss the two non-traditional arrangements at the bottom of today's post at The Faculty Lounge.

Posted by Steve Lubet on April 26, 2025 at 06:34 AM | Permalink | Comments (0)

Friday, April 25, 2025

Judge a Book By Its Cover

Posted by Gerard Magliocca on April 25, 2025 at 06:14 PM | Permalink | Comments (0)

. . . And I did not speak out--because I was glad they came for them (Update)

Deborah Lipstadt gets Isaac Chotinered. It is not good. She becomes the latest Jewish thought leader to offer tepid criticism of Trump Administration excesses while blaming universities for bringing the attack on themselves and failing to distinguish antisemitic actions (she comes back several times to UCLA students unlawfully blocking parts of campus) from obnoxious-but-protected speech and generally unlawful actions (occupying buildings) for which any antisemitic motives are irrelevant to the unlawfulness. This is disappointing because Lipstadt is a lifelong academic and smarter than Jonathan Greenblatt.

I will flag two points:

    • She says "Freedom of speech is freedom of speech. Incitement is something else. I’m not a lawyer, and I’m not going to get into what that is." First, nothing that has happened on college campuses comes near incitement--harassment or threats maybe, but not incitement. Second, this is all about what unprotected speech is and is not. By punting on drawing the line, she allows (even requires) universities or government to eliminate some protected speech because it makes her group uncomfortable.

    • Chotiner asks about her comment to the Forward that “I don’t oppose many of the things that are being done. I just wish they would be done more deftly.” She responds: "'[D]eftly' was the wrong word. That sounds almost conspiratorial. They should be done according to law." What exactly should be done according to law? I doubt there is a "lawful" way to arrest and deport someone for their speech.

I titled the post as I did because what we are witnessing is not what Niemoller witnessed (or he described it wrong). People are not failing to speak out against the coming. People are actively cheering it because "they" are coming for those these people do not like and supposedly doing so in the name of protecting them.

Update: She is back-pedaling, somewhat.

Posted by Howard Wasserman on April 25, 2025 at 06:22 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)