From then on, the future emperor was referred to only as “Little Boney” and was shown substantially smaller than all other figures, usually with oversized boots and a too-big bicorne hat. The image of Napoleon as short was firmly entrenched at that moment.
Thursday, October 10, 2024
The AAUP Has Gone Full-Orwell
First, academic boycotts are a form of academic freedom, here.
And now, compulsory DEI statements do not violate academic freedom, even when used to “evaluate[] individual faculty members’ performance by reference to them even though they dissent," here.
What’s next, “Ignorance is strength”?
Posted by Steve Lubet on October 10, 2024 at 12:32 PM | Permalink | Comments (0)
Monday, October 07, 2024
No, the Academic Engagement Network Is Not an "Israeli Front"
I have a new essay in Real Clear Politics debunking a recent accusation by Prof. Rebecca Karl, president of the NYU AAUP chapter, published on the AAUP Academe Blog:
Echoes of McCarthyism Ring in Charges of Israeli ‘Entanglement’
By Steven Lubet
October 07, 2024
In theory, it should be possible to oppose the Israeli military actions in Gaza, and defend the rights of campus protesters, without descending into anti-Jewish tropes. In reality, not so much. Even otherwise responsible university professors have seemed unable to resist embellishing their arguments with conspiracy overtones.
Consider an essay recently posted on the American Association of University Professors’ “Academe Blog.” Written by Professor Rebecca Karl, president of the New York University AAUP chapter, the essay is a scathing response to NYU’s newly issued Guidance and Expectations on Student Conduct, adopted in reaction to the Gaza war protest encampments set up at NYU and elsewhere.
According to Karl, the NYU administration has lied about the effect of its revised policy, which, she says potentially criminalizes “speech acts, inside and outside the classroom, that critically examine Zionism as a twentieth-century European political ideology.”
And she knows just whom to blame.
NYU has “dense entanglements” with the “Israeli state propaganda machine,” Karl says, including the Academic Engagement Network, which she calls “an Israeli state front.”
The latter accusation, of nefarious foreign control of an American organization, is redolent of McCarthyism at best, and perhaps worse.
In fact, the Academic Engagement Network does not solicit or receive funding from any government entity, in the U.S. or Israel. It is primarily supported by philanthropies and foundations. It is neither Israeli nor a “state front.”
Rather, AEN is a membership organization of university faculty and administrators on over 300 campuses, whose stated mission is to “counter antisemitism, oppose the denigration of Jewish and Zionist identities, promote academic freedom, and advance education about Israel.” (Disclosure: I am a member of both AEN and the AAUP.)
The “Communist front” charge, of course, was wielded by Sen. Joe McCarthy to discredit, without evidence, any group that opposed him politically, often accompanied by anti-Jewish slurs. As a professor of intellectual history and social theory, Karl was surely aware of the term’s venomous origin and its vindictive deployment – as with denunciations of “fellow travelers” and “willing handmaidens” – in the 1950s by the House Un-American Activities Committee and the Senate Internal Security Committee. Her substitution of “Israeli state” for “Communist” leaves the innuendo intact, reviving the intended smear.
But it is worse than that. The accusation of “dual loyalty” – allegiance to a foreign country, a sinister ideology, or a hidden cabal – has been a worldwide staple of antisemitic literature for centuries. The infamous “Protocols of the Elders of Zion,” for example, a forgery concocted in Tsarist Russia in 1903, described the “secret plans” of Jews, disloyal to the nations where they lived, to control the world through, among other ploys, manipulation of the media.
In this country, the charge was leveled in Henry Ford’s pamphlet “The International Jew,” describing Jews as infiltrators, “dispersed among the nations, but never merging themselves.” These days, David Duke, Louis Farrakhan, and even some more mainstream figures, routinely accuse disloyal Jews of putting “Israel first,” as did Patrick Buchanan in the 1990s.
Karl’s essay is more temperate, but the implication is familiar. Americans who support Israel, especially certain NYU trustees, are so “entangled” with its political, “economic, and cultural interests” as to be virtual fronts for a foreign government.
Reasonable minds can no doubt differ on the merits of NYU’s new guidance for student demonstrations. Perhaps it is as bad and oppressive as Karl contends. If so, that is an argument that must stand or fall on its own, without the gratuitous assault on individual trustees and charges of compromised loyalty.
The so-called Israeli state fronts on campus are as fictional as the Communists whom McCarthy imagined under every bed.
Karl made sure to point out that she is Jewish, but that is no defense for false accusations. McCarthy’s henchman Roy Cohn was also Jewish, which was no excuse for him, either.
This essay originally appeared in Real Clear Politics.
Posted by Steve Lubet on October 7, 2024 at 03:13 PM | Permalink | Comments (0)
Sunday, October 06, 2024
The Free State of Florida
I am getting the hang of this "Free State of Florida" thing, as well as the general Republican status as the party of free speech. It does not undermine freedom (and free speech in particular) to remove books from libraries; to control what teachers say in and out of the classroom; to control what professors write; or to require social-media companies to carry certain speakers and messages on their private sites. And now it does not violate free speech for the head of an executive agency to send a letter to a tv station warning it about legal implications, including criminal prosecution, if it runs a political ad that he insists is false.
For all the Republican talk about Tim Walz spouting fire in a crowded theatre (and I wish he would stop doing that), this line--the right to free speech "does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida"--is a long-winded way of telling the station it can be punished for doing just that.
And, of course, Oberlin sophomores shouting about a Charles Murray talk constitute the real threat to free speech.
Posted by Howard Wasserman on October 6, 2024 at 02:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday, October 05, 2024
Saturday Music Post - Love Me Tender
"Love Me Tender" was a number one hit for Elvis Presley in 1956, the same year it was featured in Elvis's first movie, also called Love Me Tender. The melody was taken from the Civil War era ballad "Aura Lea" (also called "Aura Lee"), with new lyrics by Ken Darby, though attributed, for reasons never explained, to his wife Vera Matson. As performed on the Ed Sullivan show that same year, "Love Me Tender" began Presley's transition from rockabilly to pop. The choice of "Aura Lea" for the melody was appropriate for the movie, which was set in the immediate aftermath of the Civil War. Don't miss the film clip at the bottom of the post at The Faculty Lounge.
Posted by Steve Lubet on October 5, 2024 at 06:29 AM | Permalink | Comments (2)
Friday, October 04, 2024
JOTWELL: Coleman on Macfarlane on case assignment
The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Katherine A. Macfarlane, Constitutional Case Management, 102 N.C. L. Rev. 977 (2004), on the constitutional implications of local rules and practices on case assignment.
Posted by Howard Wasserman on October 4, 2024 at 10:49 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
Wednesday, October 02, 2024
Students Celebrating the Terrorism of October 7
Students for Justice in Palestine, and allied groups, have announced what can only be called pro-Hamas rallies and protests for October 7, the anniversary of the worst slaughter of Jews since the Holocaust. It would be completely possible to protest Israel's actions in Gaza on any of the other 364 days of the year, so this date was obviously chosen to cause maximum harm to Jewish and Israeli students, and to interfere with mourning the victims of the Hamas atrocities.
Here is a statement from a faculty group at the University of Illinois Chicago:
UIC CELEBRATION OF TERROR
The UIC chapter of Students for Justice in Palestine (SJP) has applied for approval to hold a rally (a “quad takeover”) to express its support for and commemorate Hamas’ October 7, 2023, attacks on their one-year anniversary. In these attacks, Hamas carried out a program of murder and mass rape of civilians in Israeli towns and kibbutzim near the Gaza border. Staged on that day, this SJP event is not an abstract endorsement of political “resistance.” It sends a vicious message of hate to Jewish and Israeli students, faculty, and staff, suggesting that they are unwelcome on the UIC campus. Its celebration of the Hamas murder spree effectively calls for discrimination on the basis of national origin for Israelis and creation of a hostile environment for Jewish students, faculty and staff—all those who hold Zionism to be a central part of their personal or religious identity and their identity as a people. In the wake of an October 7th massacre that many consider a contemporary pogrom, it is clear this event will be exceptionally destructive.
Some have called for these events to be prohibited. A federal judge recently ordered the University of Maryland to allow a similar rally to proceed. I agree that viewpoint neutrality requires permitting even the most disgusting speech, but the choice of date certainly exposes the cruelty of SJP and its allies.
Posted by Steve Lubet on October 2, 2024 at 02:18 PM | Permalink | Comments (0)
Tuesday, October 01, 2024
Pete Rose, the Hall, and competing statutory interpretation
Given news that Pete Rose died Monday at age 83, I re-up this post discussing two TV documentaries (one new, one a few years old) about Rose and the Hall of Fame, specifically this point about posthumous Hall induction that has become newly relevant:
Someone (I think long-time Reds announcer Marty Brennaman) says it would be a tragedy for Rose to be inducted posthumously. I wonder. Rose supporters argue that the Hall is a museum that should record the history of the game and its players; Rose deserves a spot because the story of baseball (and certainly not the story of baseball in the 1970s and early '80s) includes Rose. But it also is a shrine, a way to honor, grant a title ("Hall-of-Famer" or "First-Ballot Hall-of-Famer"), and bestow unique privileges to certain players. Perhaps posthumous induction offers the right compromise: 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.
But, as I mentioned in the same post, posthumous induction requires some cooperation and compromise between MLB and the Hall. Rose's name remains on MLB's ineligible list, even after death. Under MLB's interpretation of its eligibility rules, ineligibility ends at death (when a person no longer can hold any formal position within MLB or a team); it thus lacks any mechanism for removing a deceased player from the list. But the Hall interprets MLB ineligibility (and thus Hall ineligibility) to continue until MLB affirmatively removes a person from the list. Someone therefore must alter its interpretation--either MLB must create a mechanism for removing deceased players from the list (making them legally, if not practically, eligible) or the Hall must be willing to accept someone as not practically ineligible although his name remains on the list.
I feel as if there is a Chevron analogy at work here.
Posted by Howard Wasserman on October 1, 2024 at 02:58 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Keep on Punching: Why Harris Wants to Debate and Trump Doesn’t
My new essay at The Hill explains why Donald Trump is so fearful of another debate with Kamala Harris. Here is the gist:
Keep on punching: Why Harris wants to debate and Trump doesn’t
by Steven Lubet, opinion contributor - 09/30/24
Vice President Kamala Harris, eager for another opportunity to confront former President Donald Trump, readily accepted CNN’s invitation to a second debate on Oct. 23. Trump quickly declined, citing a litany of reasons for avoiding another encounter.
Trump’s main rationale for refusing another debate is that “it’s just too late” because “voting has already started.”
Events in late October always have the potential to influence elections, even after voting has begun.
Trump enjoyed the Senate’s confirmation of Justice Amy Coney Barrett on Oct. 26, 2020, only eight days before he lost the election to Joe Biden. Needless to say, neither he nor Harris will stop campaigning two weeks ahead of election day.
The reality is that Trump fears Harris as a formidable opponent with a trial lawyer’s exceptional skills. She has already beaten him once, and, as of this writing, he is unwilling to risk facing her again.
“In the World of Boxing or UFC,” he posted on Truth Social, “when a Fighter gets beaten or knocked out, they get up and scream, ‘I DEMAND A REMATCH, I DEMAND A REMATCH!’ Well, it’s no different with a Debate.”
That was the right analogy but the wrong conclusion. Like any good fighter, Harris can tell when she has her opponent on the ropes. She just wants to keep on punching.
You can read the full piece at The Hill.
Posted by Steve Lubet on October 1, 2024 at 06:41 AM | Permalink | Comments (0)
Sunday, September 29, 2024
Presidential Election Trivia
If Donald Trump wins the election in November, he will become only the second president in U.S. history to serve nonconsecutive terms. In addition to that terrifying prospect, here are a few other trivial points from presidential history.
If Kamala Harris wins in November, Trump will become the fifth major-party two-time (or more) loser. The other four are: Henry Clay, William Jennings Bryan, Thomas Dewey, and Adlai Stevenson. (Martin Van Buren could be added, if we count his Free Soil Party candidacy in 1848.)
Trump is the eighth person to run for the presidency three or more times as a major party candidate. The other seven are Thomas Jefferson, Andrew Jackson, Henry Clay, Grover Cleveland, William Jennings Bryan, Franklin D. Roosevelt, and Richard Nixon. (Again, Martin Van Buren could be added, if we count his Free Soil Party candidacy in 1848.)
Comments are open to point out errors, omissions, or elaborations.
Posted by Steve Lubet on September 29, 2024 at 09:31 AM | Permalink | Comments (0)
Saturday, September 28, 2024
Saturday Music Post - Stay a Little Longer.
"Stay a Little Longer" was Bob Wills hit in 1945. It's been covered many times, most famously by Willie Nelson, as you can see this morning at The Faculty Lounge.
Posted by Steve Lubet on September 28, 2024 at 07:09 AM | Permalink | Comments (0)
Thursday, September 26, 2024
A Nice Bit of Law and Political Economy-Oriented Reporting on Disability Accommodations
The Chronicle of Higher Education is at its best when it offers the occasional bit of long-form journalism, filling the gap left wide open by the long-dead, long-mourned magazine Lingua Franca. Here's an interesting piece (paywalled, alas) in that vein. It's written by a professor but clearly must be taken to be a piece of journalism rather than expert commentary--which is good, because I'm not an expert reader on the subject, but it does a good job of interviewing a variety of individuals and discussing recent studies. The headline asks, "Do Colleges Provide Too Many Disability Accommodations?" The answer is, "Most likely, yes."
My sense is that, if one takes the definitions that seem increasingly to prevail in the mine run of legal academic literature, the article, and the issue it discusses, can be thought of as a law and political economy story. (Admittedly, some scholars use more specific definitions of the term; others use definitions derived from the 200 years of law and political economy scholarship that preceded the present, somewhat amnesiac version; and still others have retooled their articles for the submission game by adding "law and political economy" to what are apparently already-existing articles, while using a highly protean definition of the term.) At its broadest level, the article can be understood as arguing that the force behind universities granting an excessive number and degree of disability accommodations is neoliberalism. (For a definition of that term, see my prior parenthetical note.) More specifically, it can be taken to argue that the reason for the phenomenon is a combination of institutional factors: 1) laziness, greed, budget cuts, fear of litigation and/or increased insurance premiums, indifference to professors' views and role in governance, and a capitalist imperative to enroll more students and adopt a more consumer-oriented attitude on the part of universities; 2) greed and market imperatives among disability testing services; 3) careerist cowardice among disability scholars; and other forces. The result, the author argues, is an exacerbation of existing inequality:
The equity problem should be clear: If accommodations help everyone, and we relax the diagnostic criteria necessary for securing them, wealthier students will experience even more of an advantage, which is precisely what we are seeing. Accommodations are disproportionately secured by the highest performing students, further increasing the achievement gap. In one study of students receiving accommodations at a selective private college, most “showed above-average cognitive abilities, average academic skills, and no evidence of impairment.” Limited resources should be going to the students who need them most, not the students who are most skilled at securing them. A more restrictive approach to diagnosing disability and granting accommodations would allow for increased focus on lower-socioeconomic status students who are dramatically underperforming compared to their peers but do not have a diagnosis (or a disability). It would also lower the disability-provider-to-student ratio, facilitating better care for students with more serious disabilities.
Given the forces the author discusses, and universities' own place in the ecosystem of late capitalism, I am dubious of the author's closing suggestion that "higher education is ideally positioned to take the lead" on addressing these issues. This seems like the kind of BS we usually see at the end of a perfectly interesting descriptive and analytical article because of individual academic market actors' inability to resist the pressure to include a set of recommendations for reform. Nevertheless, and without endorsing all its analysis, I found the article interesting, and no doubt most teachers will. Read the whole thing, if you have the economic power to do so.
Posted by Paul Horwitz on September 26, 2024 at 08:53 AM in Paul Horwitz | Permalink | Comments (0)
Wednesday, September 25, 2024
Eric Loomis Visits an American Grave and Sees Napoleon [UPDATED]
As of today, Eric Loomis has posted 1713 installments of his "American Grave" series on the Lawyers, Guns & Money blog. Each post features a photograph of a grave, taken by Loomis, and a biography of the deceased, who include both well-known historical figures, often from the 19th century, and obscure but interesting individuals. Loomis is a progressive labor and environmental historian at the University of Rhode Island, so his "American Grave" posts often, but not always, include political commentary, sometimes favorable and sometimes scathing, depending on the individual.
Today's subject is the despicable Theodore Bilbo, who served as governor and senator from Mississippi in the first half of the twentieth century. Bilbo, for those who do not recognize his name, was one of the very worst southern segregationists, in an era when he had lots of competition for the title. As Loomis puts it, Bilbo was an "open white supremacist" who "just race-baited his way" through his political career.
At first, he was a fairly reliable vote for the New Deal but after 1936, he became an open opponent of it and happily worked with other far-right southern Democrats and Republicans to shut down major legislation. He voted against most of the New Deal labor legislation and tried to kill the Fair Employment Practice Committee.
There are many other bad things to say about Bilbo, and virtually nothing positive. But then Loomis says this:
And let’s not beat around the bush, Bilbo was a piece of shit in other ways. He was a tiny man, only 5’2″ and he had serious Napoleon syndrome. He dressed super flashy for the time and, most terribly, constantly referred to himself in the third person.
While there is no doubt that Bilbo was a piece of shit, what does being short have to do with it?
More to the point, why is it almost reflexive to slap "Napoleon syndrome" on short men who exercise power? What evidence is there that Bilbo's height had anything to do with his drive and ambition (evil as it was)? Do aggressive tall men have serious Peter the Great complexes?
In fact, Napoleon was about 5'6", which was average for Frenchmen at the time. Peter the Great, however, was indeed 6'8".
The myth of Napoleon's shortness as a negative character trait began as a put-down by the British cartoonist James Gillray during the Napoleonic Wars:
Certainly, in the English-speaking world, Gillray creates the image that runs through to this day. . . . It’s very common in England today to call someone a ‘Little Napoleon.’ The idea is you have to be little to have such great self-importance – as in a Napoleon complex.
We have mostly gotten to the point when body size and shape are no longer used derogatorily. Why is it still acceptable to use short stature as an insult tied to an imputed psychological condition?
Before anyone asks, I am 5'6" and very intense, just like many of my much taller colleagues.
[UPDATE: I did a humorous commentary about the "Napoleon Complex" for NPR's Morning Edition in 1996. I cannot find the audio on line, but the text of the piece is after the jump.]
Continue reading "Eric Loomis Visits an American Grave and Sees Napoleon [UPDATED]"
Posted by Steve Lubet on September 25, 2024 at 06:21 PM | Permalink | Comments (0)
Call for Nominations: Best Untenured Article
The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2025 AALS Annual Meeting.
The purpose of the award program is to recognize outstanding scholarship in the field of Federal Courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2024 (date of actual publication deter-mines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of October 1, 2024), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Professor Marin Levy at Duke University School of Law ([email protected]).
Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2024. Nominations will be reviewed by a prize committee comprised of Professors Payvand Ahdout (University of Virginia School of Law), Kellen Funk (Columbia Law School), Tom Lee (Fordham School of Law), Marin K. Levy (Duke University School of Law), and Richard Re (University of Virginia School of Law), with the result announced at the Federal Courts Section program at the 2025 AALS Annual Meeting.
Posted by Administrators on September 25, 2024 at 11:27 AM in Civil Procedure, Teaching Law | Permalink | Comments (0)
Tuesday, September 24, 2024
Prof Leiter on "The new timetable of the law school hiring market"
Interesting insights from Prof. Leiter on the new timetable of the law school hiring market.
Posted by Sarah Lawsky on September 24, 2024 at 08:51 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Saturday, September 21, 2024
JOTWELL: Erbsen on stipulated secrecy
The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, & Aaron Schaffer-Neitz, Secrecy by Stipulation, 74 Duke L.J. __ (forthcoming, 2024), on how party agreement prompts courts to grant protective orders without good cause, undermining public access to the courts.
Posted by Howard Wasserman on September 21, 2024 at 09:31 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)
Saturday Music Post - William Tell Overture
The "William Tell Overture"is most famous as the theme song to The Lone Ranger, on radio, television, and film. But of course it is a serious classical composition, the four-part introduction to Gioachino Rossini's opera of the same name, which premiered in 1829. William Tell was a legendary (or perhaps mythic) crossbow marksman, who led Swiss resistance to Austrian tyranny in the early Fourteenth Century, paving the way for the independence of the Swiss Federation. If Tell was actually a real person -- which seems unlikely -- he might or might not have shot an apple off of his son's head, a feat said to have saved both of them from execution.
In addition to The Lone Ranger, the fourth part of the "Overture," called "The March of the Swiss Soldiers," was also the theme to a British series The Adventures of William Tell.
Part Four of the "Overture" has been transcribed for individual musicians from Franz Liszt to Glen Campbell (with occasional parodies), many of which are posted at The Faculty Lounge.
Posted by Steve Lubet on September 21, 2024 at 06:29 AM | Permalink | Comments (0)
Friday, September 20, 2024
Mike DeWine Defends Springfield, but Why Didn't He Publish It in the Wall Street Journal?
Ohio Gov. Mike DeWine has an essay in today's New York Times powerfully defending Springfield, and its Haitian community, from the lies spread by Donald Trump and JD Vance. He writes,
Springfield is having a resurgence in manufacturing and job creation. Some of that is thanks to the dramatic influx of Haitian migrants who have arrived in the city over the past three years to fill jobs.
They are there legally. They are there to work.
It is disappointing to me that Springfield has become the epicenter of vitriol over America’s immigration policy, because it has long been a community of great diversity.
"Disappointing" is putting it mildly, but it is still encouraging to see a Republican contradicting his party's nominees. Alas, that is as far as he is willing to go:
As a supporter of former President Donald Trump and Senator JD Vance, I am saddened by how they and others continue to repeat claims that lack evidence and disparage the legal migrants living in Springfield. This rhetoric hurts the city and its people, and it hurts those who have spent their lives there.
What? Saddened? How can he remain a supporter of the candidates whose falsehoods -- "lack of evidence" is a polite way of saying it -- have caused so much damage to a community in his state:
Bomb threats — all hoaxes — continue and temporarily closed at least two schools, put the hospital on lockdown and shuttered City Hall. The two local colleges have gone remote. I have posted Ohio Highway Patrol troopers in each school building in Springfield so the schools can remain open, teachers and children can feel safe and students can continue to learn.
DeWine was born in Springfield. He and his wife have lived within 10 miles their entire lives, yet he is only saddened and disappointed by racist lies being told about people whom he recognizes as important contributors to the revival of Springfield's economy.
And so the question: Why didn't DeWine publish this in the Wall Street Journal, where it might have some impact on Republican voters? Was he simply virtue signaling, knowing that the Trump faithful dismiss everything in the Times? Or did he first offer it to the Journal, only to have it refused?
Posted by Steve Lubet on September 20, 2024 at 08:39 AM | Permalink | Comments (0)
Wednesday, September 18, 2024
Fifth Circuit makes a Heck-of-a-mess
I wrote last December about Wilson v. Midland Cty., a § 1983 action by a woman convicted (and given a suspended sentence) two decades ago by a prosecutor who was moonlighting as a clerk for the judge who presided over her trial. The case wades into a circuit split over whether a person seeking damages arising from constitutional violations within a criminal prosecution must show favorable termination under Heck when she is no longer in custody (and thus able to get habeas relief in federal court).
At the time, I wondered whether the plaintiff would seek rehearing on en banc or go straight to SCOTUS; she chose the former. Not only did she lose, but the Fifth Circuit made a hash of Heck.
Judge Oldham wrote for a plurality (9/18) to say that Heck is not about the line between two statutes (§ 1983 and § 2254), as everyone has long understood. Instead, it is about the requirements of common law torts. Citing the Court's most recent decision--which defined favorable termination as an element of a malicious-prosecution claim and which the Court did not decide as a Heck case--the plurality holds that favorable termination is an element of all § 1983 actions challenging violations around a criminal conviction. The unavailability of federal habeas was of no moment, so long as state mechanisms remained open to her. Judge Haynes concurred in part for two, approving of the disposition of the case--dismiss without prejudice so plaintiff can pursue state favorable-termination mechanisms. Judge Willett--who wrote the panel majority while expressing outrage over the result--dissented in even higher dudgeon. Not only does he object to applying Heck to non-prisoners (the result, he argues, of following pure dicta), be he must take on Oldham's nonsense.
Haynes' concurrence actually illustrates the problem with the outcome (and the plurality's analysis). Insisting that he does not argue that Heck imposes a state exhaustion requirement, he argues that Heck includes as a favorable-termination mechanism "the ability to go to the state," includng a state appellate or post-conviction court. That is, he rejects the idea that federal habeas represents the only mechanism for obtaining favorable termination, since Heck itself identifies state mechanisms for obtaining favorable termination.
But that gets everything backwards. The issue is not the availability of state mechanisms to undo a conviction. The issue is what happens when those state mechanisms fail; the text, history, and purpose of § 1983 and § 2254 show that the states cannot have the last word on the validity of the conviction and the rights-holder must have a federal forum at some point. The question is which vehicle. A person-in-custody uses § 2254, which requires state exhaustion anyway. But habeas is not an option for a person not in custody. Under the Fifth Circuit approach, that rights-holder is stuck with the state result, with no option for federal reconsideration. That functions as an exhaustion requirement. And it is inconsistent with what § 1983 is supposed to do.
I cannot believe the Court will not take this case. Lord knows how badly they will botch it.
Posted by Howard Wasserman on September 18, 2024 at 02:30 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Tinker and universities
The Sixth Circuit reversed a 12(b)(6) dismissal of a lawsuit by a then-pharmaceutical student who was investigated and dismissed (although the dismissal was reversed) for social-media posts that violated "professionalism" standards. The court found her speech protected and that the right of a university student not to be punished for protected speech clearly established (despite on-point precedent involving a pharmaceutical student and social-media posts about sex and fashion). It also handles some fun Civ Pro stuff about what evidentiary materials a court can use on a 12(b)(6) without converting to summary judgment.
This should be an easy case, at least at 12(b)(6). Her speech was online and off-campus; unrelated to the school, her activities as a student, and her future career as a pharmacist; and violates professional norms only if those norms are unacceptably content- and viewpoint-based.
One problem: The court relied on the "disruption" test developed in high-school speech cases (Mahanoy and Tinker). Circuit precedent requires it, although recognizing that what disrupts a university should be different than what disrupts a high school. Still, the prospect that a university can restrict speech under the quasi-heckler's-veto that prevails in high schools is dangerous. In essence, that is what the school tried here. And I would have preferred a more rousing defense of an adult's free-speech rights.
Posted by Howard Wasserman on September 18, 2024 at 10:19 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Tuesday, September 17, 2024
Procedure Matters, Episode LIX
Kind of a weird one but it illustrates how the rules operate and interact in confusing ways.
Plaintiff brings False Claims Act qui tam action; defendant answers but does not raise the constitutional invalidity of qui tam actions as an affirmative defense; defendant moves for judgment on the pleadings based on constitutional invalidity (qui tam actions violate Article II). The court denied the motion because defendant did not raise the affirmative defense in the answer, so it is not part of the pleadings for FRCP 12(c) purposes. Defendant had to amend its Answer to add the constitutional defense, which might be tricky since the court had set a scheduling order (which heightens requirements for amending).
This is a plausible outcome. But I think the court errs (or at least fails to perform proper analysis) in two respects. Both go to the court's failure to actually decide whether qui tam actions violate the Constitution.
First, the constitutional defense should be a built-in defense--the constitutional validity of the law sued upon should be built into the complaint's allegations of a violation of that law. Defendant could have responded to the complaint with a 12(b)(6) motion raising the constitutional defense, which would have forced the court to decide whether the Constitution permits qui tam actions. If so, a defendant should be able to raise a built-in defense on a 12(c); even if not pleaded in the answer, the affirmative defense is built into a complaint that mentions and includes allegations about the FCA. For comparison, a defendant can raise the statute of limitations on a 12(b)(6) if the complaint includes dates showing the claim is untimely; if the defendant answers without an SL defense and moves under 12(c), the court can still look at the complaint, see that the complaint is untimely, and grant the motion, even if the defendant did not plead SL.
Second, before deciding the defense must be in the answer, the court waves away the constitutional analysis. The court says this (and this is all it says):
Under the present state of the law, Defendants’ separation-of-powers challenge to the qui tam provisions of the False Claims Act is insufficient on its own to demonstrate that Relators’ complaint is implausible. Further, even if “[t]he FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone,”and even if it is time to revisit the matter, it is equally true that “lower federal courts should not ‘pass on questions of constitutionality . . . unless such adjudication is unavoidable’ . . . .”
That is a cop-out. If qui tam actions are constitutionally invalid, they do render the complaint implausible--no reasonable inference from the facts taken as true shows plaintiff can recover, given the constitutional defects in the FCA. But the court must decide the open constitutional question to make that plausibility determination. It cannot stop with pointing out that other (non-binding) precedent has gone the other way and thus does not outright preclude the claim or make the claim frivolous.
Posted by Howard Wasserman on September 17, 2024 at 06:33 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, September 16, 2024
‘Sotomayor Rule’ exposes the Supreme Court’s porous ethics code
My new essay for The Hill uses the Supreme Court justices’ book sales to illustrate the porousness of their unenforceable code of conduct. Here is the gist:
‘Sotomayor Rule’ exposes the Supreme Court’s porous ethics code
In July 2023, the Associated Press reported that Sotomayor’s “tax-funded court staff” had been pushing book sales at her speaking engagements.
When the Supreme Court issued its code of conduct, just a few months after the Associated Press expose, it included an entirely novel provision in Canon 4A, that is found in no other court’s code. The “Sotomayor Rule,” as it might be called, states that “a justice may attend and speak at an event where the justice’s books are available for purchase.”
But that’s not all. A few paragraphs down the page, Canon 4G greatly expands the rule by authorizing justices to use their staff and chambers to “materially support…activities permitted under these Canons,” which uniquely includes making books “available for purchase.”
This provision is directly contrary to the lower courts’ code, which expressly prohibits the substantial use of chambers or staff for “extrajudicial activities,” including those otherwise permitted.
Thus, the justices have invented a right to put their staffs to private use — including, by the terms of Canon 4D, the management of investments — which is appropriately denied to all other U.S. judges.
You can read the entire essay at The Hill.
Posted by Steve Lubet on September 16, 2024 at 12:01 PM | Permalink | Comments (0)
Saturday, September 14, 2024
Saturday Music Post - I Hear You Knockin’ on Wood
In 1966, Eddie Floyd and Steve Cropper wrote "Knock on Wood" on a stormy night in Memphis at the Lorraine Motel, about two years before Martin Luther King would be assassinated in the same location. At the time, the Lorraine was one of the few places in Memphis where Black and white people could meet together, or where Black people could stay in modern commercial accommodations. Over the years, virtually all of the great Stax acts stayed there, including Ray Charles, Aretha Franklin, Wilson Pickett, the Staple Singers, Otis Redding, and others. According to Steve Cropper, the thunderstorm gave them the idea for the refrain, "like thunder, lightning, the way you love me is frightening." The song was a hit for Eddie Floyd and has been covered many times over fifty years. Other "knockin'" songs on today's post include Fats Domino's "I Hear You Knocking" and Little Richard's "Keep a' Knocking" (covering an earlier recording by Lil Hardin).
The clips can all be enjoyed at The Faculty Lounge.
Posted by Steve Lubet on September 14, 2024 at 05:57 AM | Permalink | Comments (1)
Friday, September 13, 2024
Right Metaphor, Wrong Lesson
Donald Trump says he obviously won his debate with Kamala Harris because she wants to debate him again:
“In the World of Boxing or UFC, when a Fighter gets beaten or knocked out, they get up and scream, ‘I DEMAND A REMATCH, I DEMAND A REMATCH!’ Well, it’s no different with a Debate."
The reality is that Harris, like any good fighter, has her opponent on the ropes and she plans to keep punching.
Posted by Steve Lubet on September 13, 2024 at 08:32 AM | Permalink | Comments (0)
Thursday, September 12, 2024
Academic Boycotts Cannot Become the New Normal
The University of Minnesota's Ronald Krebs has an excellent essay in Inside Higher Education, explaining how "the new AAUP statement on academic boycotts undermines scholarly values and opens the door to further politicization of the academy." Krebs identifies and sharply refutes the three major arguments in favor of legitimizing academic boycotts.
Here are some excerpts (though I highly recommend reading the full piece):
Why do the old, serious arguments against academic boycotts get short shrift from defenders of the new AAUP policy? I suspect their silence masks, or rather reveals, deeper, unspoken disagreements over the nature of the scholarly enterprise and the purpose of the university.
Society grants the academy special prerogatives, encapsulated in codes of academic freedom, because it recognizes the larger good the scholarly enterprise serves. Society has little reason to grant the academy those special prerogatives when the faculty collective behaves in ways that no longer advance that public good. When faculty vote for academic boycotts that violate colleagues’ academic freedom and that curb the circulation of ideas, they lose the right to autonomous democratic self-governance.
Defenses of the AAUP statement traffic, bluntly, in Orwellian doublespeak. Proponents of academic boycotts are, they claim, the true defenders of academic freedom. Those calling for unfettered scholarly exchange are, they argue, the enemies of academic freedom. Boycotting colleagues because of one’s politics, they contend, is a courageous ethical stance. Holding the line against punishing colleagues for crimes they did not commit is, they aver, pure politics. Backing the legitimacy of academic boycotts is, they maintain, the only neutral stance.
The AAUP’s new statement on academic boycotts has further delegitimized a once-august institution. It has further opened the door to the university’s already-blooming politicization and polarization. The AAUP has lost sight of the academy’s purpose.
You can read the entire essay in Inside Higher Education.
Posted by Steve Lubet on September 12, 2024 at 04:51 PM | Permalink | Comments (0)
Tuesday, September 10, 2024
Why Is the New York Times Legitimizing a Holocaust Denier?
My new essay at The Bulwark responds to the New York Times’s egregious euphemism for Holocaust denial. Here is the gist:
Why Is the New York Times Legitimizing a Holocaust Denier?
IT WAS SHOCKING, although not surprising, to see Tucker Carlson praise the prominent Holocaust denier Darryl Cooper, who said Adolph Hitler was a peacemaker and called Winston Churchill the “chief villain” of World War II. But it was even more shocking—as well as dismaying and disheartening— when the New York Times conferred some credibility on Cooper by repeatedly describing him as merely a “Holocaust revisionist” rather than an outright denier.
The New York Times reported two stories on the Cooper-Carlson connection, both with misleadingly anodyne headlines: “Tucker Carlson Sharply Criticized for Hosting Holocaust Revisionist,” and “Vance Declines to Denounce Carlson After Interview With Holocaust Revisionist.”
I INITIALLY ASSUMED that the Times’s “Holocaust revisionist” headlines had been written in haste by an uninformed editor and would therefore be quickly corrected, given that the articles themselves correctly refer to Cooper’s “false claims.”
I wrote to the two reporters and received this reply: “It's an interesting question and one we wrestled with. Classic Holocaust deniers say either the Holocaust didn’t happen or was greatly exaggerated. Cooper conceded that millions of Jews died. He is questioning the motives and methods.”
This is a meaningless, and credulous, distinction.
The Times headlines normalize Cooper’s pretension to legitimacy. They ignore the vast gulf between unintended starvation, which Cooper falsely claims, and premeditated mass murder, which is what actually happened.
You can read the full essay at The Bulwark.
Posted by Steve Lubet on September 10, 2024 at 02:58 PM | Permalink | Comments (0)
People will come, Ray
In memory of James Earl Jones, who died Monday. I used a piece of his monologue as an epigram my first piece on fan speech.
Posted by Howard Wasserman on September 10, 2024 at 12:55 AM in Howard Wasserman | Permalink | Comments (0)
Monday, September 09, 2024
COSELL 2024 - this Friday and Saturday - full program!
So excited to be co-hosting COSELL 2024. The 19th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL).
here is the full rich program:
COSELL 2024 Schedule
FRIDAY SEPTEMBER 13 – USD Joan B. Kroc Institute for Peace and Justice
8:00: BREAKFAST – Room AB
8:25: Welcome
- Dean Robert Schapiro (University of San Diego School Law)
- Dean Sean Scott (California Western School of Law)
- Professor Orly Lobel (University of San Diego School of Law)
- Professor Susan Bisom-Rapp (California Western School of Law)
8:45 – 10:15 a.m. GROUP 1
PANEL A: Room C
Moderator – Orly Lobel
Ruben Garcia, Hostile Environments
Seema Patel, Whistle While You Work? The Fatal Problem with Whistleblower Regulations in Low-Wage Work Industries
Daiquiri Steele, Whistleblowing Parity
PANEL B: Room D
Moderator – Susan Bisom-Rapp
Tanya Hernández, The Role of DEI Training in Employment Discrimination Law
Diana Reddy, Discrimination as Exploitation
Michael Selmi, DEI and the Private Workplace
PANEL C: Room G
Moderator – Rick Bales
Michael Oswalt, New Independent Union Organizing Campaigns at Starbucks, Amazon, Trader Joe’s, etc.
Gali Racabi, Expressive Employers, Silent Workers
Alvin Velazquez, The Death of Labor Law and the Rebirth of the Labor Movement
10:15 - 10:30 a.m. BREAK
10:30 a.m. – 12:00 p.m. GROUP 2
PANEL A: Room C
Moderator - Ariana Levinson
Rachel Arnow-Richman & J.H. (Rip) Verkerke, Defusing Disclaimers
Jonathan Harris, Neo-Lochnerism Meets Neo-Taylorism: Attacks on Worker Mobility
Orly Lobel, Between Fuzzy Doctrine and Void Contracts: How Trade Secrecy Law Shapes the Breadth of Non-Competes
PANEL B: Room D
Moderator – Marcia McCormick
Stephanie Bornstein, Impact Arbitration
Liz Tippett, “Severe or Pervasive”: Evidence that Courts Dismiss Harassment Cases that Juries Would Find Meritorious
Deborah Widiss, The Sexual Harassment Silo
PANEL C: Room G
Moderator – Gali Racabi
Samuel Estreicher, The Perils of Political Unionism
Joel Heller, Voting at Work
Jeff Hirsch, Labor Regulation of AI
12:00 - 1:00 p.m. Lunch will be served in Room AB
1:00 - 2:30 p.m. GROUP 3
PANEL A: Room C
Moderator – Michael Oswalt
Susan Bisom-Rapp & Urwana Coiquaud, The State’s Role in (De)Standardizing Work: A Government-Focused Approach to Regulatory Capture in the Platform Economy
Doron Dorfman, Work Law for Volunteers
César Rosado Marzán, Alt-Labor’s Laws in Chicago and a Dignity Gap
PANEL B: Room D
Moderator – Tristin Green
Marcia McCormick, Judicial Jujitsu in Anti-Discrimination Law after Bostock
Helen Norton, How the Antidiscrimination Law of Commercial Transactions Really Works
Vicki Schultz, How the DOJ Civil Rights Division Helped Desegregate the American Workforce in the 1960s and 70s
PANEL C: Room G
Moderator – Branden Butler
Michael Green, Responding to Efforts to Eradicate Workplace Law Agencies
Stefan McDaniel, Rearticulating Labor Rights
Courtlyn Roser-Jones, The General Counsel’s Labor Agenda
2:30 - 2:45 p.m. BREAK
2:45 - 4:15 p.m. GROUP 4
PANEL A: Room C
Moderator – Rick Bales
Deepa Das Acevedo, They Said- They Said: Narratives and Counter-Narratives in Tenured Faculty Terminations
Ryan Nelson, Work Law’s Domain
Yiran Zhang, Workification
PANEL B: Room D
Moderator – Jessica Fink
Saru Matambanadzo, Interrogating Accommodation
Nicole Porter, Troubling Trends: ADA Definition in Disability Cases 2019-2023
D’Andra Shu, Remote Work Disability Accommodations Since COVID
PANEL C: Room G
Moderator - César Rosado Marzan
Liz Ford, The (Un)Common Law of Police Collective Bargaining
Ariana Levinson, How Union Negotiations in Worker-Owned Co-ops Compare to More Traditional Negotiations
Noah Zatz, Varieties of Democratization: Labor Law and the Co-op Problem
4:15 - 4:30 p.m. BREAK
4:30 - 6:00 P.M. GROUP 5
PANEL A: Room C
Moderator - Ryan Nelson
Rick Bales, Using AI to Teach LEL and ADR
Aneil Kovvali, Labor Market Competition and Collaboration
Pascal McDougall, Labor Struggle, Law, and the Theory of Competition
Shefali Milczarek-Desai, Is There Hope for Workers’ Rights?
PANEL B: Room D
Moderator - Doron Dorfman
Heidi Liu, Age Discrimination and the Role of Norms
Ben Pyle, Ban the Box: Fair Chance Hiring, Hiring Discrimination Enforcement, and Local Labor Markets
Naomi Schoenbaum, Information Regulation as Antidiscrimination: The Central Provision of the Law of Workplace Equality
PANEL C: Room G
Moderator - Liz Tippett
Jessica Fink, The Benefits and Pitfalls of Backdating #MeToo
Catherine Fisk, Speech @ Work
Tristin Green, Beyond Personal Offense in Antidiscrimination Law: Muldrow’s Return to Work
SATURDAY, SEPTEMBER 14 – California Western School of Law, 350 Cedar Street, San Diego
8:30 - 9:15: BREAKFAST: 1st Floor Lobby
9:15 - 10:45 a.m. GROUP 6
PANEL A: Room LH1
Moderator - Susan Bisom-Rapp
Blair Bullock, The State Takeover of Employment Law
Marcy Karin, Menstrual Bargaining
Alexi Pfeffer-Gillett, The Inconvenience Doctrine
PANEL B: Room LH2
Moderator – Deborah Widiss
Dallan Flake, Religious Sincerity After Groff
Jarod Gonzalez, Private Contractors, Security Clearance Determinations, and Employment Discrimination Law
Madeleine Gyory, The Reasonable Pregnant Worker
Tolu Odunsi-Nelson, Redefining the Scope of Anti-Discrimination Law: Illuminating Colorism Claims as a Basis for Race Discrimination Claims by Black Entertainers
PANEL C: Room 2B
Moderator – Orly Lobel
Louis Cholden-Brown, Lassiter at Work: The Status of Qualified Rights to Counsel
Sofia Cornejo, From Neutral to Integral: A Feminist Analysis of Domestic Violence as a World of Work Issue
Andrea Johnson, Accusations of Racism in the Workplace
Robert Mantell, Two Different Strike Zones: Inconsistent Rules Applied in Winning and Losing Discrimination Cases
Posted by Orly Lobel on September 9, 2024 at 04:21 PM | Permalink | Comments (1)
Saturday, September 07, 2024
Saturday Music Post - Unrelated Cochrans
Eddie Cochran was one of the early rockers, with a rebellious image that was later perfected by Elvis Presley and Bob Dylan. Wayne Cochran was called the White Knight of Soul, and was well known for his friendship with fellow Georgians James Brown and Otis Redding (he played bass on Redding's early recordings). Hank Cochran was less famous than the other two, but was extremely influential in country music, writing hits for Patsy Cline, Eddy Arnold and others. Anita Cochran recorded "Fight Like a Girl" (at the bottom of the post) following her breast cancer diagnosis.
You can see them all at The Faculty Lounge.
Posted by Steve Lubet on September 7, 2024 at 01:17 PM | Permalink | Comments (0)
Friday, September 06, 2024
There Are No Holocaust "Revisionists"
Two recent headlines in the New York Times referred to a "Holocaust Revisionist":
Tucker Carlson Sharply Criticized for Hosting Holocaust Revisionist
Vance Declines to Denounce Carlson After Interview With Holocaust Revisionist
No, no, no, no, no. The so-called "revisionist" in question is Darryl Cooper, who in fact is a flat-out H0locaust denier. As the Times explains several paragraphs into the article:
Mr. Cooper, who has a podcast and newsletter called “Martyr Made,” proceeded to make a variety of false claims about the Holocaust and World War II, including that millions of people in concentration camps “ended up dead” merely because the Nazis did not have enough resources to care for them, rather than as a result of the intentional genocide that it was.
The White House got it right, which wasn't difficult:
“Giving a microphone to a Holocaust denier who spreads Nazi propaganda is a disgusting and sadistic insult to all Americans, to the memory of the over six million Jews who were genocidally murdered by Adolf Hitler, to the service of the millions of Americans who fought to defeat Nazism and to every subsequent victim of antisemitism.”
Holocaust deniers routinely call themselves "revisionists" to give their "moral rot" (as the White House put it) a veneer of respectability. One of their main organizations, for example, is called the Institute for Historical Review.
But the truth is that they are antisemitic deniers with no intellectual legitimacy, as Deborah Lipstadt proved in London almost 30 years ago.
There is no excuse for the Times to use the term "Holocaust revisionist" in 2024. I realize that the reporters don't write the headlines, but the editor who wrote this one should be reassigned.
Posted by Steve Lubet on September 6, 2024 at 02:41 PM | Permalink | Comments (0)
Thursday, September 05, 2024
FIU College of Law seeks tenure-track doctrinal faculty
Florida International University College of Law, South Florida’s public law school, invites applicants for multiple tenure-track positions to begin no later than the 2025-26 academic year. We seek candidates in Environmental Law, Intellectual Property/Technology, and Criminal Law and Procedure, as well as coverage in other first-year and core upper-level courses such as Administrative Law.
Continue reading "FIU College of Law seeks tenure-track doctrinal faculty"
Posted by Howard Wasserman on September 5, 2024 at 11:57 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
FIU College of Law seeks legal writing faculty
Florida International University College of Law, South Florida’s public law school, invites applicants for a contract position in Legal Skills and Values, to begin no later than the 2025-26 academic year.
Continue reading "FIU College of Law seeks legal writing faculty"
Posted by Howard Wasserman on September 5, 2024 at 11:56 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Blogging Sabbatical
I've been an active blogger for fifteen years. After much reflection, I've decided that it's time for an extended break. Academic sabbaticals give people time to reflect and to work on other projects. The same will be true here.
I'll be back sometime next year. In the meantime, as Edward R. Murrow used to say when signing off, "Good night, and good luck."
Posted by Gerard Magliocca on September 5, 2024 at 11:07 AM | Permalink | Comments (0)
AI and oral assessments
Over the years, we have had many posts and conversations about oral assessments. I have written about my oral arguments in Fed Courts and Civil Rights, which now provide the sole end-of-semester assessment (everything else happens in-semester).
A thought this morning: Would oral assessments provide a solution to the Chat GPT/AI problem?
Posted by Howard Wasserman on September 5, 2024 at 06:41 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Tuesday, September 03, 2024
Defending Michael Roth
Not that he needs me to. I agree with Steve--and have said as much, here and elsewhere--that university's discovery of the freedom to offend and to express the idea we hate miraculously appeared only when offense began targeting Jews.
As to Roth*: My instinct is to take him at his word--he intends to apply "no right not to be offended" across the board. He said as much during the parents' convocation last week. Of course, that tells us nothing about how the administrators in the DEI office act on the ground, but I only know so much at this point.
Full disclosure: I have been a fan for many years, since long before the current campus controversies or my kid's interest in going to the school. I saw video of him (from just after the Great Recession, when the bottom dropping out of humanities began accelerating) defending liberal arts and college education being about more than getting a job; I was hooked. That he has (mostly) gotten the speech stuff right--and that my kid decided to go there--only adds to my fanboydom.
Roth said something else to parents I found interesting: That students have a right not to be harassed but no right not to be offended and that the line between them is clear and obvious in most cases. And I think most people in that room agreed--it is clear and obvious. But I expect most would disagree with me (and him) about which side any particular case fell.
Posted by Howard Wasserman on September 3, 2024 at 02:50 PM in Howard Wasserman | Permalink | Comments (0)
A Stunning Reversal on Academic Boycotts Is All about Israel
My new essay in The Hill explains how the AAUP’s new position – legitimizing academic boycotts – is a threat to the principle of academic freedom. Here is the gist:
A stunning reversal on academic boycotts is all about Israel
There was a time when the American Association of University Professors (AAUP) deserved its self-description as the “most prominent guardian of academic freedom” for faculty and students in the U.S., but not any longer.
Last month, the organization rescinded its long-standing opposition to academic boycotts, which it had previously recognized as aiming “directly at the free exchange of ideas,” in favor of a new policy declaring that such boycotts “can legitimately seek to protect and advance . . . academic freedom and fundamental rights.”
The turnaround is a betrayal of academic values, which ideally comprise the “freedom of teachers and researchers to engage in work with academic colleagues” and “the freest possible international movement of scholars and ideas,” without political restraints.
You can read the entire essay in The Hill.
Posted by Steve Lubet on September 3, 2024 at 01:31 PM | Permalink | Comments (0)
More on Wesleyan
Howard skeptically comments below on Wesleyan President Michael Roth's NYT op-ed, explaining that last Spring's Gaza encampment was permitted to continue because the students' "right to nonviolent protest was more important than their modest violations of the rules." In his persuasively understated way, Howard calls this a "unique take," which will of course invite greater disruptions.
I found another aspect of Roth's oped equally dubious:
I also met with pro-Israel students, mostly Jewish, some of whom felt beleaguered by what their classmates were saying. I made clear that if any of them felt harassed, I would intervene. I also said that I could ensure their ability to pursue their education, but that I could not protect them from being offended.
That would be a welcome change on many campuses, given the tendency of DEI offices to intervene whenever students claim to feel "unsafe." The question, of course, is whether Roth, or any other university administrator, will apply the "no protection from offense" policy to any groups other than Jews.
Posted by Steve Lubet on September 3, 2024 at 11:21 AM | Permalink | Comments (0)
VAPs and Fellowships 2024-2025
A spreadsheet for candidates to track information about VAPs or similar fellowships (for example, the Climenko and Bigelow) for the 2024-2025 hiring cycle is now available. In the spreadsheet, you can enter information regarding screeners, callbacks, offers, and so forth. You can also write more general comments.
The tabs on the spreadsheet marked "Comments" and "Q&A" will, I hope, serve as substitutes for the comment thread on Prawfs, as the commenting function on Typepad is in serious technical trouble. If people have questions about the process, please post them on the Q&A tab, and everyone -- including current professors and fellows -- please chime in and answer!
Anyone can edit the spreadsheet; I will not be generally editing it or monitoring it.
Here is last year's thread and last year's spreadsheet.
Posted by Sarah Lawsky on September 3, 2024 at 11:16 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Monday, September 02, 2024
Hiring Committee Topics of Interest 2024-2025
As of September 2, 2024, there are 134 unique schools represented in the hiring committees sheet. (If your committee is not represented on the spreadsheet, please fill out the Google form or send me an email!) Many, though not all, of these schools expressed interest in particular subject or subjects for hiring. Of course, that a school expresses interest in a particular area does not mean that the school will hire in that area. And schools may hire in areas that they do not list. Nonetheless, to see in what areas schools expressed interest, I classified all the topics listed to general classifications, and then counted the numbers of times each general classification was mentioned (graph below; see a spreadsheet with the full list and count; you could do this one-by-one in the filtering tool if you wanted to for some reason).
Continue reading "Hiring Committee Topics of Interest 2024-2025"
Posted by Sarah Lawsky on September 2, 2024 at 05:10 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
"Modest violations of the rules"
Wesleyan (where my son had his first class this morning) President Michael Roth published a NYT op-ed encouraging more political activity on campus this year, arguing that universities exist for the good of the individual and the good of the world, inherently political and public-leaning spaces in which to "practice democracy."
Speaking of last spring's encampments, Roth writes "[s]ince the protest was nonviolent and the students in the encampment were careful not to disrupt normal university operations, we allowed it to continue because their right to nonviolent protest was more important than their modest violations of the rules." Framing long-term encampments as "modest violations of the rules" is a unique take--certainly different from the notion that the encampments represented a sea change from small rulebreaking for a limited time to something "more aggressive, more interfering, and more permanent."
Posted by Howard Wasserman on September 2, 2024 at 12:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Musk suit proceeds v. Media Matters
So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.
On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.
On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).
While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.
Posted by Howard Wasserman on September 2, 2024 at 11:50 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday, August 31, 2024
Do reasons for non-enforcement matter?
The Eighth Circuit declared invalid a Missouri law that a bunch of federal laws related to firearms "shall be invalid to this state, shall not
be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." No state or local officials possess enforcement authority. And the law creates a private right of action (because Republican lawmakers believe that is the magic bullet to stop everything they do not like) against any public official who enforces the law.
Missouri argued (correctly) that it can refuse to allow its officers to enforce federal law; thus, the reasons for refusing to enforce do not matter. Here, in full, is the Court's response:
That Missouri may lawfully withhold its assistance from federal law enforcement, however, does not mean that the State may do so by purporting to invalidate federal law. In this context, as in others, the Constitution “is concerned with means as well as ends.” Horne v. Dep’t of Agric., 576 U.S. 350, 362 (2015). Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be ‘consist[ent] with the letter and spirit of the constitution.’” Id. (quoting McCulloch, 7 U.S. (4 Wheat.) at 421) (alteration in original). Missouri’s assertion that federal laws regulating firearms are “invalid to this State” is inconsistent with both. If the State prefers as a matter of policy to discontinue assistance with the enforcement of valid federal firearms laws, then it may do so by other means that are lawful, and assume political accountability for that decision.
I am a formalist and even I recognize this as utterly mindless formalism. This is not 1833 South Carolina preparing to wield the militia against federal enforcers. There is no meaningful difference between "federal law is illegal in this state and we will not enforce it" and "federal law is stupid and we will not enforce it" and "we don't wanna enforce it just 'cause and you can't make us--nyah." Missouri can reenact the identical law tomorrow and rely on #2 or #3 and land in the same place--no state or local enforcement, private right of action against any officer who attempts to enforce.
Maybe the law could include a preamble or finding saying "We, the legislature, believe these laws are invalid to this state, should not be recognized by this state, should be specifically rejected by this state, and shall not be enforced by this state, but the activist federal judges will not let us say that."
Posted by Howard Wasserman on August 31, 2024 at 08:21 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday Music Post - Angelic Voices
"Seven Spanish Angels" was released by Willie Nelson and Ray Charles in 1984, becoming Charles's most successful hit on the Country charts. It was conceived by Troy Seals and Eddie Setser as a sort of Marty Robbins song, but Robbins had died in 1982. They offered it to Willie Nelson, who agreed to record it, but Ray Charles's producer had heard the demo and suggested it as a duet.
Brilliant idea, which you can enjoy along with many covers on The Faculty Lounge.
Posted by Steve Lubet on August 31, 2024 at 05:35 AM | Permalink | Comments (0)
Thursday, August 29, 2024
Information Technology Chair Search
It's a busy hiring year for my school. We are also initiating a search for a new Information Technology Chair. Again, feel free to contact me if you are interested or have questions.
Posted by Gerard Magliocca on August 29, 2024 at 10:52 AM | Permalink | Comments (0)
Wednesday, August 28, 2024
A New Research Project
Senator Birch Bayh's papers are held by Indiana University. Senator Bayh was the longtime chair of the Senate Subcommittee on Constitutional Amendments (from the early 1960s until the late 1970s). That committee gave us the 25th and 26th Amendments along with the ERA. I'm planning to do a deep dive into the Subcommittee's materials to see if there might be a compelling story to tell. One thing that I see already is that the Subcommittee served as something of a real-time critique of the Warren and Burger Courts. In other words, conservatives would introduce constitutional amendments to overrule decisions that they did not like. Maybe there is more.
Posted by Gerard Magliocca on August 28, 2024 at 06:57 AM | Permalink | Comments (0)
Tuesday, August 27, 2024
Health Law Chair Search
The Indiana University Robert H. McKinney School of Law is conducting a search for our chair in Health Law. The Chair would also be the Director of our Health Law Center. Please contact me if you are interested in applying.
Posted by Gerard Magliocca on August 27, 2024 at 08:28 AM | Permalink | Comments (0)
Monday, August 26, 2024
CFP: Federalism Scholarship Roundtable
Continue reading "CFP: Federalism Scholarship Roundtable"
Posted by Howard Wasserman on August 26, 2024 at 04:57 PM in Teaching Law | Permalink | Comments (0)
Sunday, August 25, 2024
Handball
Like many people every four years, I love team handball. Denmark won the men's Gold and Norway the women's Gold (with Denmark taking the bronze).*
[*] My non-sports-fan niece did a semester in Copenhagen. One day she and some friends encountered a massive crowd celebrating on the streets--turned out they were celebrating some big win by one of the teams. They had no idea why the crowd was out there but they joined the celebration anyway.
I do not understand why handball is not bigger in the United States, at least as a college sport. It fits the U.S. sports mentality--high-scoring, fast-paced, lots of running and jumping, and physical, although without the concussion risks of football and other tackling sports. (For example, it is a penalty and "suspension" to hit the goalie in the face with a shot, even accidentally). It combines elements of sports Americans already play and watch--basketball, soccer, lacrosse, baseball. It could attract good athletes from these sports with the promise of teaching the skills. For comparison, lacrosse (men's and women's) has developed a high profile at the collegiate level, including a fair number of nationally televised games. Many top programs (especially as the women's game developed) began with coaches seeking out good athletes and taking care of the rest. It seems to me the same could and should happen with handball, which involves skills (dribbling, throwing, running, jumping) that players already possess and do not require them to learn to handle a new piece of equipment.
As the host nation for the 2028 Olympics, the U.S. team automatically qualifies for the tournament. The U.S. is nowhere near ready to compete against the best international teams. But maybe a good showing will spark interest in the sport at lower domestic levels. In fact, that was USA Team Handball's plan in the mid-aughts when Chicago vied for the 2016 Games--get a team into the tournament and create interest and passion for a cool game. Maybe it can happen 12 years late.
Posted by Howard Wasserman on August 25, 2024 at 02:37 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Saturday, August 24, 2024
University of San Diego School of Law - We are Hiring!
Happy FAR Form Week from The University of San Diego School of Law! We are looking for three to four new colleagues (both entry-level and lateral) to join our active and engaged faculty. We are always looking for excellent scholars in any field - and I think you will find a great intellectual home with us. So please send your materials our way.
We have a specific interest this year in Criminal Law, Criminal Procedure, Evidence, Civil Procedure, and Immigration. But again, open to all fields.
Please email [email protected] with interest, regarding yourself or if you know of great prawfs looking to make a move! And always happy to personally discuss the school, the process, the academic job market. good luck to all!
Posted by Orly Lobel on August 24, 2024 at 04:46 PM | Permalink | Comments (0)
Saturday Music Post - With a Little Help from My Friends
"With a Little Help from My Friends" was the second track on the Beatles' 1967 album Sgt. Peppers Lonely Hearts Club Band. The vocal was by Ringo Star, in the persona of the band's lead singer, The One and Only Billy Shears. It was not released as a single at the time, but Joe Cocker did release it as a single in 1968, reaching number one on the British charts but only 68 on the U.S. Hot 100. Nonetheless, Cocker's performance of it at Woodstock was legendary (see bottom of the post, right after the audio from Sgt. Pepper), and many probably remember his version more than the Beatles'. Interestingly, the Beatles's version was reissued as a single in 1978 (I am not sure how that was authorized), but it went nowhere. "With a Little Help from My Friends" was never performed live by the Beatles, but Ringo has included it in his live sets, often with guest stars as a duet.
All of that can be seen and heard at The Faculty Lounge.
Posted by Steve Lubet on August 24, 2024 at 06:30 AM | Permalink | Comments (0)
Friday, August 23, 2024
Governor Hochul’s Lawless Vetocracy over Congestion Pricing: Why Undermining the Independence of Public Authorities Destroys Political Accountability
David Siffert and I have just filed an amicus brief (available here) on behalf of four state legislators in the litigation over Governor Hochul’s purported “pausing” of congestion pricing. I have already posted an item explaining why I believe that Governor Hochul’s assertion of power is lawless. In brief, the plain text of New York’s Traffic Mobility Act (“TMA”) gives the Metropolitan Transportation Authority’s Board power to design, implement, and operate the statutorily required congestion pricing system, to the exclusion of the governor. The statutory command could not be clearer: Vehicle & Traffic Law section 1704(b) specifies that the Board “shall…plan, design, install, construct, and maintain a central business district toll collection system and implement and operate the same to collect the central business district toll.”(This textual argument is cogently laid out by the brief filed by Emery Celli on behalf of City Club of New York and two other petitioners).
Our amicus brief supplements this textual argument with an argument about legislators’ intent. The simple point of our brief is that the legislators (four of whom are our clients) understood the MTA Board to be an independent public authority not subject to being bossed by the Governor. On pages 4-6 of our brief, we summarize and cite to legislators’ statements that they understood the MTA, not the governor, to be in charge. (Kudos to our outstanding RAs for listening to hours of YouTube videos of hearings to find this stuff!) Beyond statements from legislators, we quoted multiple statements by Governor Andrew Cuomo, the person who proposed congestion pricing in 2017, declaring that he was not in charge of the MTA and could not control its actions. (For a good example, see this 2018 CBS story).
We would be delighted if Justice Engoron concluded that the statutory text so plainly excludes gubernatorial power over congestion pricing that any reference to this legislative history is unnecessary. That legislative history, however, usefully reveals how judicially inferring unwritten gubernatorial powers to veto or “pause” the MTA Board erodes political accountability by complicating responsibility for the tolling program. Mayors and governors like to invoke the MTA’s “independent” status to avoid taking blame for poor subway service. That’s already confusing to voters. Adding an unwritten, essentially hidden gubernatorial “pause” power to the mix makes the entire system utterly unintelligible: It creates the ultimate covert vetocracy (to use Fukuyama’s term) in which governors have the power to say “no” but no responsibility to provide good subway service.
Posted by Rick Hills on August 23, 2024 at 08:23 AM | Permalink | Comments (0)