PrawfsBlawg

Monday, January 20, 2025

What Did You Learn in School?

Tom Paxton wrote this song in 1963. Pete Seeger popularized it, and it was covered by many others 60 years ago.

Turns out that Paxton was pretty prescient, as we wait for the Trump/McMahon takeover of the department of education.

Here is Paxton's 2000 update, also prescient:

Pete Seeger's long introduction in interesting, for those who are interested in that sort of thing:

 

Posted by Steve Lubet on January 20, 2025 at 06:58 AM | Permalink | Comments (0)

Saturday, January 18, 2025

Poor Richard's Almanac--1737. Or 2025?

 

Posted by Gerard Magliocca on January 18, 2025 at 09:06 PM | Permalink | Comments (0)

Settlement and New York Times v. Sullivan

It is not news that at least three members of SCOTUS (Thomas, Alito, Gorsuch) have shown some desire to at least revisit New York Times v. Sullivan. I have been sanguine, and perhaps Pollyanna-ish, in believing there are not two more votes to undo the Court's first-and-strongest act of protecting free speech. But news reports that Paramount wants to settle Trump's suit against CBS over supposedly deceptive editing of 60 Minutes' Kamala Harris interview*--hot on the heals of Disney settling the suit against George Stephanopoulous over saying Trump had been found liable for rape--suggests the regime collapsing in a different respect.

[*] Purportedly because Paramount worries--and may have been told by told as much by incoming FCC Chair Brendan Carr--that the FCC will resist a proposed merger with Skydance Media and that Paramount must make concessions to Trump and his administration.

Prior to the 1960s, the Times' refused to settle defamation acti0ns. Adolph Ochs regarded settlement as "tribute" and would spend money only for litigation. By the early 1960s, $300 million in potential defamation liability to Southern officials (including $ 3 million against the Times for "Heed Our Rising Voices") rendered that strategy unworkable. That partly explains the Times taking Sullivan's case to SCOTUS as a First Amendment issue--it needed the decision to stop the organized strategy of extortionate litigation as a legal weapon to silence the media.**

[**] The rise and demand for anti-SLAPP statutes reflects the view that speakers need protection against not only liability but the cost of litigation itself, where plaintiffs seek to use the judicial process as the punishment.

We have returned to extortionate litigation but against a more compliant, and compromised, media ownership. And as bad as the Disney/Stephanopoulos case was, the Paramount/60 Minutes case is worse. The district court in Stephanopoulos had denied a motion to dismiss and there was at least a plausible claim that Stephanopoulos was not substantially truthful (and knew as much) when he repeatedly said Trump had been found liable for rape (rather than sexual abuse). Paramount wants to settle before the case even gets that far. And their case is absurd--Trump cannot identify any way in which 60 Minutes editing the interview  injures Trump in a legally cognizable way such that, however deceptive, it loses constitutional protection. But Paramount has no interest in fighting for free speech where it conflicts with its business interests. A settlement in this case arguably extends beyond extortion to something like bribery--Paramount would give Trump tribute in exchange for the merge despite facing no real risk of legal jeopardy.

This post provides an opportunity to promote two pieces of scholarship: Samantha Barbas' Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, which uses the Times' internal files to explore the case as one about civil rights, and Thomas Healy's review of the book in Michigan Law Review.

Posted by Howard Wasserman on January 18, 2025 at 11:36 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday Music Post - Before Elvis

Before he became a movie idol and Las Vegas headliner, Elvis Presley was heavily influenced by African American blues artists, who are the subjects of a great new book: Before Elvis: The African American Musicians Who Made the King, by Preston Lauterbach. Big Mama Thornton is the most well-known, having recorded "Hound Dog" in 1953, three years before Elvis. It was written by Jerry Leiber and Mike Stoller, who were teenagers at the time, at the request of Johnny Otis. Today's post at The Faculty Lounge has some tracks (mostly audio) by a few of those classic performers.

Posted by Steve Lubet on January 18, 2025 at 06:20 AM | Permalink | Comments (0)

Friday, January 17, 2025

Polarization, and what to do about it

This is the third post in the series from Chad Oldfather on his book, Judges, Judging, and Judgment.

                In my last post I outlined the diagnostic portions of Judges, Judging, and Judgment (use code JJJ2024 for a discount). The problem, as I see it, is not just polarization, but that many of the mechanisms that have traditionally served to channel judicial behavior toward adherence to law (again, however we might conceive of that) have weakened. The result is more space for the operation of the sorts of influences—usually imagined as raw politics--that we’d prefer to shield against.

                So what do we do about it?

Continue reading "Polarization, and what to do about it"

Posted by Howard Wasserman on January 17, 2025 at 10:49 AM in Books, Judicial Process | Permalink | Comments (0)

Thursday, January 16, 2025

No, Katherine Franke Was Not Fired by Columbia Law School

You may have read about Prof. Katherine Franke’s “termination” from her tenured position at the Columbia University Law School, but it turns out there is more to the story. My new essay in the Chronicle of Higher Education takes a deeper dive into the case, concluding that she was not fired at all. Here is the gist:

Katherine Franke announced earlier this month that she had been forced out of her tenured position at Columbia University’s law school because of her pro-Palestine activism. The Center for Constitutional Rights, where Franke once served as board chair, called it an “egregious attack on both academic freedom and Palestinian-rights advocacy.” The president of the American Association of University Professors said Columbia’s actions were “truly shameful,” declaring that the organization “stands with “Professor Franke and against this repression of pro-Palestinian speech.”

These and other expressions of solidarity, however, all appear to have been based solely on Franke’s side of the story, which she posted in a two-page statement on January 10. Franke detailed what she called her “termination,” following an “unjustified finding” that her “public comments condemning attacks against student protesters violated university nondiscrimination policy.”

Franke’s statement is, at best, misleading. It contains substantial omissions. She was not terminated by Columbia, although she was found responsible for harassing Israeli students on the basis of national origin.

You can read the entire piece in the Chronicle of Higher Education. (Paywalled, but most university libraries have subscriptions.)

Posted by Steve Lubet on January 16, 2025 at 06:00 PM | Permalink | Comments (0)

Polarization, but not just polarization

This is the second installment of Chad Oldfather's series of posts on his new book, Judges, Judging, and Judgment.

                As I mentioned in my first post, Judges, Judging, and Judgment (out today!) arose generally out work I’ve been doing for the entirety of my time in legal academia, and more directly out of materials I developed and continually refined for the Judging and the Judicial Process course I’ve consistently taught for over fifteen years. What resulted is thus very much a work of synthesis, a weaving together of strands of in law, philosophy, political science, and psychology in an effort to tease out what ails us.

Continue reading "Polarization, but not just polarization"

Posted by Howard Wasserman on January 16, 2025 at 10:36 AM in Books, Judicial Process | Permalink | Comments (0)

Wednesday, January 15, 2025

Judges, Judging and Judgment: An Origin Story

The following is the first of several posts from Chad Oldfather (Marquette) on his new book, Judges, Judging and Judgment (Cambridge University Press)

Greetings, all. I’m delighted to be reappearing at Prawfs after more than a decade away. Last time I was here I still imagined myself as young, perhaps even up-and-coming. That’s a harder story to sell these days, but sometimes the person in the mirror still buys it. Yet the years have unquestionably passed, and since it’s been so long a brief (re)introduction seems in order.

Continue reading "Judges, Judging and Judgment: An Origin Story"

Posted by Howard Wasserman on January 15, 2025 at 04:07 PM in Books | Permalink | Comments (0)

Federal Judges Shouldn’t Renege on Their Retirements

Continue reading "Federal Judges Shouldn’t Renege on Their Retirements"

Posted by Richard M. Re on January 15, 2025 at 01:51 PM | Permalink | Comments (7)

Tuesday, January 14, 2025

Job Posting - Federal Judicial Center - 2025

From Timothy Lau, Federal Judicial Center:

The Research Division of the Federal Judicial Center is currently seeking Research Associate(s). Candidates ideally would have both a Ph.D. and a JD. The Federal Judicial Center is the research and education agency of the United States federal courts, and research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries.

The precise job listing can be found at https://www.usajobs.gov/job/827523100

Posted by Sarah Lawsky on January 14, 2025 at 04:54 PM | Permalink | Comments (0)

Guest Blogger: Chad Oldfather on Judging, Judges, and Judgment

I am pleased to announce that Chad Oldfather (Marquette) will guest-blog on his new book, Judges, Judging, and Judgment (Cambridge University Press, forthcoming this week). His posts will begin tomorrow.

Posted by Howard Wasserman on January 14, 2025 at 12:31 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 13, 2025

Can Donald Trump block people on Twitter?

I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.

Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.

It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.

Curious to hear what others think. What's that definition of insanity everyone uses?

Posted by Howard Wasserman on January 13, 2025 at 02:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Pleading as press release, performative litigation, and good guys v. bad guys

I read Steve's article in conjunction with this post from David Schraub discussing the suit against the congressmen and complaint against Haverford College. The district court dismissed Haverford because the complaint spent 129 pages railing about anti-Semitism and political disagreements over Israel/Gaza but did not allege any facts showing any violations of any laws by Haverford injuring Haverford students. David criticizes the lawsuit as a "form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive." Meanwhile, Steve's article reveals why the suit against the legislators is doomed and that the lawyers have no clue what they are doing--there is no "it's really unconstitutional" exception to Speech or Debate.

I want to drill down on this because a range of ideas are floating here.

Beth Thornburg coined the term "pleading as press release" years ago. She used it (and I teach it in class) to refer to the portions of an otherwise arguable claim meant for public consumption, that promote someone or something apart from the lawsuit. In other words, extra material thrown into the complaint for the public to see. For example, a lawsuit several years ago against a Nike store over a shopping-while-Black incident includes pages and pages of statistics and stories about George Floyd, the 2020 protests, and the problem of shopping-while-Black. Or Jameis Winston's answer to the lawsuit by the FSU student he allegedly sexually assaulted includes sixteen pages not conforming to the required structure of pleadings or responding to the allegations in the complaint (the usual point of an answer) calling the plaintiff a lying slut. This practice likely existed for years, although increased (if not improved) coverage of courts increases the likelihood of such add-ons.

We should distinguish this from "performative litigation," in which the entire lawsuit is a performance without regard to success. The lawsuit seeks to draw public attention to a cause (e.g., Gaza), to the plaintiff (making Trump or Musk look like tough-guy heroes for their fanboys), or to both. It seeks to garner support for an issue, rally the troops, or something else. The over-the-top complaint is part-and-parcel of that--performance requires an audience and attention, both of which come with a long complaint filled with hyperbole and rhetoric. But you can have a press-release pleading in a meritorious lawsuit. Alternatively, the desire to perform can overwhelm that meritorious claim (David argues this happened in Haverford, where attorneys buried allegations suggesting a meritorious claim "inside such an amalgam of irrelevant ranting").

David and Steve raise shared-but-opposite questions about the relative responsibility for this problem between parties and attorneys. The plaintiffs in the Gaza case have made public statements celebrating the lawsuit as a way to shine a spotlight on the U.S. role in Gaza and to rally public support for their cause; Steve blames the attorneys for ignoring their essential role of advising and guiding their clients to as to the limits of what courts can do. The attorneys in the Haverford case failed in their duty by sacrificing the potential merits of their clients' claims to their desire to play "soapbox orator" (and, I would add, filing a 129-page complaint, regardless of the content). Update: Note that this potential divide between lawyers pursuing a cause and their clients is as old as constitutional litigation, as Derrick Bell described. But Bell described a divide over remedies--integration versus best educational opportunities. A departure over how much rhetorical hyperbole to include in the complaint seems like a different in kind.

These issues arise, although draw less discussion, in the lawsuits alleging violations of due process and the public-trust doctrine because of climate change. These lawsuits fail, usually on standing. But many attorneys, activists, and academics cheer these lawsuits even as they fail; they argue in similar terms--legal losses draw attention to the cause and perhaps prompt changes in conduct or action by other parts of the government. Climate activists also view themselves as the NAACP in the mid-1940s; I think the Gaza plaintiffs see themselves the same way.* Still, it would be interesting to see how climate activists and Musk fans or Gaza activists would distinguish their lawsuits from the others'.

[*] Interesting Rule 11 question Steve and I kicked around: The complaint does not acknowledge the uncharted territory it enters as to Speech or Debate and as to Flast standing. Should plaintiffs acknowledge in the complaint when they seek an extension or change in the law? Or is it enough to plead the case, ready to defend the good-faith extension in response to a Rule 11 motion. I lean towards the latter, although I see the benefit to getting ahead of it in the pleading. The fact these plaintiffs did not do that may suggest they do not realize how far on a limb they go.

Posted by Howard Wasserman on January 13, 2025 at 02:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

No, you cannot sue legislators who vote for Israel funding

My new essay for The Hill explains why a lawsuit against two California representatives is frivolous, no matter how much the plaintiffs abhor funding for Israel. Here is the gist:

The class-action suit against Israel’s funding defies law and logic

The appalling devastation in Gaza, much of it wrought by U.S.-supplied weapons, certainly seems to have driven many of Israel’s critics, including otherwise reasonable people, to thoughtless measures, staking out extreme and unsupportable positions that will do nothing to end the war. 

One case in point is a bizarre federal class action lawsuit (Donnelly v. Thompson) recently filed in the Northern District of California, claiming that Reps. Mike Thompson (D-Calif.) and Jared Huffman (D-Calif.) had “exceeded the constitutional limitations on their tax and spend authority by voting to authorize the funding of the Israeli military.”  

Their case is entirely without legal merit. Their clients lack standing to bring the case. They sued the wrong defendants. No court can grant the relief they have requested. Their claims are barred by a specific provision of the Constitution. 

Attorneys are prohibited from filing cases merely to rally support or shine spotlights. A lawsuit demands more substance than a press release. There are rules against frivolous litigation, brought solely to attract attention, no matter how heartfelt the cause. 

You can read the entire piece at The Hill.

Posted by Steve Lubet on January 13, 2025 at 12:28 PM | Permalink | Comments (0)

Good Faith in U.S. Constitutional Law

I was invited to draft a chapter about US law for a book about the use of "good faith" standards in constitutional jurisprudence worldwide.  I've posted my draft on SSRN.  Here is the abstract:

The language of "good faith" and "bad faith" is rarely invoked directly with a specific legal meaning within the constitutional law of the United States. But it would be a mistake to ignore the work motivational analysis and faithfulness to role and the Constitution plays more broadly within constitutional law more capaciously conceived. Many domains of constitutional law interrogate the good faith or bad faith of government actors to test their compliance with constitutional norms--and constitutional practices routinely demand fidelity to the constitutional project itself. From the law of oaths and impeachments to the law of tiered scrutiny associated with the Equal Protection Clause under the Fourteenth Amendment among others, several features of U.S. constitutional law make important demands on public officeholders. More important, perhaps, than the pockets of direct enforcement of good faith norms to U.S. constitutional law, however, is the theory of public office they evince. That so often the Constitution of the United States demands as a primary rule of conduct that public officers act faithfully tells us that there is a fiduciary conception of office pervading the law even when it is not enforced directly as a rule of decision. That brings it closer to private law implementations of good faith than has thus far been appreciated.

 

 

Posted by Ethan Leib on January 13, 2025 at 10:47 AM | Permalink | Comments (0)

Saturday, January 11, 2025

Saturday Music Post - Rescue Me

"Rescue Me" was written in 1965 by Raynard Miner, Carl William Smith, and Fontella Bass (although she did not get credit until much later). Released by Chess Records that same year, it was Bass's biggest hit by far, reaching number 4 on the Hot 100 and number 1 on the R&B chart. Minnie Riperton was one of the backup singers, with drums and bass by members of Earth, Wind & Fire. It was Chess's biggest hit since Chuck Berry's heyday, selling over a million copies. Bass nonetheless left Chess after a couple years, having been under-appreciated and underpaid. She finally obtained a fair share of royalties following extended litigation, but she never achieved similar recording success again. You can hear the original and some covers at The Faculty Lounge.

 

 

Posted by Steve Lubet on January 11, 2025 at 05:46 AM | Permalink | Comments (0)

Friday, January 10, 2025

Revised Draft on Women's Suffrage and the Reconstruction Amendments

I've posted on SSRN a revised draft and abstract of my paper entitled "Right in Theory, Wrong in Practice." 

Posted by Gerard Magliocca on January 10, 2025 at 11:36 AM | Permalink | Comments (0)

Wednesday, January 08, 2025

Greenland Whale Fisheries

Oh, Greenland is a dreadful place/ A land that's never green./ Where there's ice and snow/ And the whale fishes blow/ And daylight's seldom seen.

Peter Yarrow, R.I.P.

 

 

Posted by Steve Lubet on January 8, 2025 at 09:50 AM | Permalink | Comments (0)

Tuesday, January 07, 2025

JOTWELL: Pfander on West on constitutional torts

The new Courts Law essay comes from James Pfander (Northwestern) reviewing E. Garrett West, Refining Constitutional Torts, 134 Yale L.J. ___ (forthcoming 2025) on how reconceptualizing constitutional rights changes the process of litigating constitutional  rights. I am also thinking about how it affects disputes over offensive and defensive litigation and laws such as S.B. 8.

Posted by Howard Wasserman on January 7, 2025 at 10:53 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 06, 2025

Trans-parenting

I published an essay over break for the Boston Globe about parenting trans youth.  Although some of the piece draws on my work in ethical theory about the subject, it presses a somewhat more personal and political view.  If you can't get past the paywall, here is a PDF: Download __1Ideas__001KGLXXX1222F.

Posted by Ethan Leib on January 6, 2025 at 11:16 AM | Permalink | Comments (0)

Saturday, January 04, 2025

Saturday Music Post - The Hot Sardines

The Hot Sardines were "founded in 2011 by Elizabeth Bougerol and Evan Palazzo over a mutual love of Fats Waller." They got their start at underground parties in Brooklyn, and have since toured worldwide with their brand of "reinvigorated classic jazz." Some Fats Waller covers are at the bottom of today's post at The Faculty Lounge.

 

Posted by Steve Lubet on January 4, 2025 at 07:19 AM | Permalink | Comments (0)

Tuesday, December 31, 2024

Roberts to Court critics: Be nice, be truthful, and listen to what we say

Forgive the snark, but that is the best summary of the 2024 Year End Report on the Federal Judiciary. Roberts begins with the usual historical lecture, this one on judicial independence from 1761-Present. He goes from George III interfering with colonial judges through the Declaration complaining about that interference through the Convention and The Federalist establishing life tenure through Marbury and into modern times, framing judicial independence as a necessary concomitant of judicial review. He identifies four threats to judicial review: 1) Violence; 2) Intimidation; 3) Disinformation; and 4) Threats to defy judgments.

One problem is that his framing of "intimidation" is so capacious as to cover most constitutionally protected criticism of judges and judicial decisions. Intimidation includes: disappointed litigants urging online followers to send messages to the judge; disappointed litigants claiming the judge was biased against them for various reasons; doxing of judges leading to people protesting judges at home and in public; and suggesting political bias in rulings "without a credible basis for such allegations." He finishes with this: "Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others." He segues into disinformation disconnected from intimidation, such as "distortion" of the factual or legal basis for a decision, which "can undermine confidence in the court system."

Criticism of the courts must be, as my title suggests, nice, polite, and truthful--otherwise it constitutes improper intimidation and a threat to judicial independence. Never mind that public debate may (and should) include "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Never mind that all speech directed at all people "may" cause bad people to do bad things--that cannot be the basis for silencing criticism of public officials. Never mind that Roberts does not--and cannot--explain who decides what criticisms are accurate or inaccurate and when there is sufficient basis for a charge of political bias or when a criticism crosses into "distortion." Absent any basis for measure, the answer must be "do not criticize the courts" lest that criticism become illegitimate--and dangerous-- intimidation. As with "I believe in free speech, but . . ." the but in "you can criticize the courts, but . . ." subsumes everything before it. And gives the rhetorical game away.

Roberts also uncorks this: "Our branch is peculiarly ill-suited to combat this problem, because judges typically speak only through their decisions. We do not call press conferences or generally issue rebuttals." This is a long-standing--and patently false--trope. In 2024 alone, Justice Alito, Judge Jones, Judge Duncan, and others showed that they enjoy many outlets and opportunities--including friendly press outlets--through which to issue rebuttals.

To his credit, Roberts frames the disobedience point in the right way. He does not target the Southern Manifesto as defiance of Brown itself. He focuses (properly) on lower courts' decisions post-Brown/based on Brown to integrate other schools, specific instances of governors defying those specific lower-court orders, and Eisenhower and Kennedy enforcing those lower-court orders.

Finally, Roberts pays single-paragraph lip service to the courts' responsibility for maintaining their own legitimacy--stay in their constitutionally assigned lanes, respect standing limits, and respect coordinate branches. He expresses "confiden[ce]" that judges will "faithfully discharge their duties." Put aside the conspicuous absence of any acknowledgement or awareness of the Court's ethical problems. And put aside the conservative realignment to loosen standing and expand the scope of the Court's lane, a realignmentn in which Roberts has played a role. It does not matter whether judges faithfully discharge their duties; for Roberts, any suggestion that any judge did not do so is improper intimidation and disinformation.

Posted by Howard Wasserman on December 31, 2024 at 10:41 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 30, 2024

Sometimes Judges Apologize; Mostly, they do not

Good morning, everyone. My new essay for The Hill is about judges’ apologies. You’ll never guess who didn’t give one.

Here is the gist:

‘Flag-gate’ led one jurist to issue an apology, but it wasn’t Samuel Alito

by Steven Lubet, opinion contributor

Everyone makes mistakes, including judges. Sometimes they acknowledge it. Mostly, they don’t.

A commendable example of the former is senior U.S. District Judge Michael Ponsor, who published an opinion essay in the New York Times in May criticizing Supreme Court Justice Samuel Alito’s involvement in what is sometimes called “Flag-gate.” Although Ponsor’s criticism was entirely sensible, he subsequently apologized for going beyond the “proper boundaries” for commentary by a sitting judge. Alito himself has not been so forthcoming, at least in part due to the absence of a formal process for reviewing the ethics of a justice’s conduct.

The contrast with Ponsor reveals more than Alito’s thin skin. His irate reaction to the Democrats’ recusal request amounted to a partisan counterattack. In a less indignant response, Alito would have at least allowed the possibility of misinterpretation or misunderstanding — occurring before he revealed his wife’s role — with his political resentments omitted.

It would probably be too much to expect the notably combative Alito to acknowledge that waving an upside-down flag in January 2021 was at best an unfortunate coincidence, much less to apologize for creating an appearance of identification with the Capitol mob. Without a formal process, however, it is impossible even to request it.

You can read the entire piece at The Hill.

Posted by Steve Lubet on December 30, 2024 at 11:06 AM | Permalink | Comments (0)

Jimmy Carter and the courts

On the death of former President Jimmy Carter, some thoughts on his judicial legacy.

• Carter famously did not appoint a SCOTUS Justice. He is the only 20th-century President and the only President since Andrew Johnson not to get an appointment (the others with none are William Henry Harrison and Zachary Taylor). I use Carter in Fed Courts to illustrate the randomness of appointments in our system--other Presidents who served one term (or less) appointed at least one Justice and in some cases many more.

Carter was a victim of bad timing with respect to the Court. Nixon/Ford made five appointments in eight years from 1969-77, replacing the old-and-long-serving liberals (Warren, Black, Douglas, as well as Harlan) with younger members who obviously were not ready to resign. In 1980 (the final year Carter could have made an appointment), Thurgood Marshall (72) had been on the Court for 13 years; Byron White (63) for 18 years; and William Brennan (74) for 24 years.* (Potter Stewart was 65 and had served for 22 years, but he was a Republican and not inclined to give a Democrat the seat--he retired in 1981, allowing Reagan to appoint Sandra Day O'Connor). Perhaps if Abe Fortas had not been forced to resign he would have been ready to resign at age 70 after 15 years. Or, for a deeper counter-factual, perhaps if Arthur Goldberg had not resigned in favor of Fortas, he would have been ready to resign at age 72 after 18 years (and perhaps a decade as Chief). The point is that from 1977-81, no Justice happened to die or get sick and no one was of the age, tenure, or inclination to retire, strategically or otherwise. Carter was stuck.

[*] When Josh Barro argued that Justice Sotomayor should resign to give Biden the appointment--an argument I criticized--he compared Marshall's failure to resign in 1980, which lead to to Justice Thomas. Yet Brennan was two years older, had served almost twice as long, and also did not last the 13 years until the next Democratic President.

• Carter appointed an extraordinary number of lower-court judges, thanks in part to a 1978 law that created 152 new judgeships, which he filled during the final half of his term. Carter was the first president to meaningfully diversify the federal bench in terms of gender and race, filling judgeships with leaders of the Civil Rights and women's rights movements. I clerked for one of those judges--James T. Giles, who served for almost 20 years (1979-2008) on the Eastern District of Pennsylvania, including six years as Chief. Although not part of the movement, Giles worked at the EEOC and the NLRB right out of law school prior to private practice and taking the bench at the age of 36.

• My 2021 study of Academic Feeder Judges found that Carter appointees led the way in producing academics. Of the top 102 lower-court judges, 26 were Carter appointees; of the top 51 district judges, 18 were Carter appointees.

Posted by Howard Wasserman on December 30, 2024 at 01:54 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, December 28, 2024

Saturday Music Post - Girl from the North Country

"Girl from the North Country" is on Bob Dylan's second album, The Freewheelin' Bob Dylan, released in 1963. Unlike his eponymous debut album, Freewheelin' featured mostly original tracks, including "Blowin' in the Wind" and "Don't Think Twice, It's Alright." It was the album that really brought him to national attention -- Bob Dylan had sold relatively poorly -- charting at number 22.

There is evidently some ongoing debate about the identity of the north country girl. Some say it was one of his Minnesota sweethearts, others that it was Suze Rotolo, who is holding his arm on the album cover. (I wouldn't call New York the north country, but she is wearing a "coat so warm.") I'm guessing it was no one in particular, given that the introductory line -- "Remember me to one who lives there/for she was once a true love of mine" -- was lifted from the traditional English ballad "Scarborough Fair" (no, Paul Simon didn't write it).

Either way, it became one of Dylan's memorable collaborations with Johnny Cash, which you can see at The Faculty Lounge.

(I've always been drawn to this song about the north country because of my ancestral ties to Winnipeg, which is about 325 miles northwest of Hibbing, and 450 miles from the Twin Cities. I originally had it queued up for mid-June, but we saw A Complete Unknown yesterday, which I recommend, and I decided to rearrange the schedule.)

Posted by Steve Lubet on December 28, 2024 at 06:28 AM | Permalink | Comments (0)

Monday, December 23, 2024

Realigning Standing with Substantive Due Process

Continue reading "Realigning Standing with Substantive Due Process"

Posted by Richard M. Re on December 23, 2024 at 08:00 AM | Permalink | Comments (7)

Saturday, December 21, 2024

Saturday Music Post - What Do These Songs Have in Common?

Today's music post is a perennial (or is it an evergreen?), first posted in 2021. You can find the answer at The Faculty Lounge.

 

 

Posted by Steve Lubet on December 21, 2024 at 05:49 AM | Permalink | Comments (0)

Wednesday, December 18, 2024

Stop Sanewashing RFK, Jr.

The nomination of Robert F. Kennedy, Jr. to lead the Department of Health and Human Services is an impending disaster that has not been taken sufficiently seriously. Dr. Steven Novella, a Yale clinical neurologist, explains it succinctly in a post at the always interesting Science Based Medicine site:

It is also frustrating to watch many in the media try to sanewash his opinions, and don’t seem to appreciate the underlying problem. Such reports often takes the form of – well, he may be nutty, but he has a point regarding this issue. But actually he doesn’t have a point – being sort-of right from a certain angle but for an entirely wrong reason is simply not good enough when it comes to the health of our country.

RFK Jr has a flawed process, and all of his conclusions are tainted by these flaws. He does not seem to understand how science works, the nature of risk-vs-benefit in medicine, nor the difference between hazard and risk. He also tends to look at all health issues through the same ideological lens – it’s always about toxins in the environment, toxins in our food, and toxins in our medicines. Because actual experts don’t agree with his nonsense, he then concludes that they are the problem (not him) and therefore they are part of a dark conspiracy.

He said the obesity epidemic is cause by “poisoned food” (because it’s always about toxins and poison, right?). He then goes further to say that GMOs are the problem – GMOs are “nutrient barren” while non-GMO produce used to be nutrient rich.

This is simply not true. If you make the wrong diagnosis it’s very unlikely that you will prescribe the correct treatment. GMO crops are not less nutritious than non-GMO crops.

RFK Jr’s process is fatally flawed, and his conclusions are nonsensical and incoherent. Sure, if you squint you may see bits and pieces that are related to the actual answer, but even then he gets the diagnosis wrong.

Read the entire post here (and I recommend checking out SBM every day).

 

 

Posted by Steve Lubet on December 18, 2024 at 01:01 PM | Permalink | Comments (0)

Monday, December 16, 2024

The Further Decline of the AAUP

My new essay for The Hill describes the further decline of the AAUP, once a champion of academic freedom and now approving political restrictions of its own. Here is the gist:

The fall of academic freedom with a DEI twist

In August, the AAUP rescinded its longstanding opposition to academic boycotts, adopted in 2006. The new policy — clearly aimed at Israeli universities in response to the brutally destructive Gaza war — now holds that such boycotts “can legitimately seek to protect and advance … academic freedom and fundamental rights.”  

In October, the AAUP’s Committee on Academic Freedom issued a statement [endorsing] the use of statements that “require faculty members to address their skills, competencies and achievements regarding DEI [diversity, equity, inclusion]” as factors for “appointment, reappointment, tenure and promotion.” 

A faculty vote, of course, can reflect a collective political orthodoxy, which job seekers challenge at their own risk.

Earlier this month, Cornell University’s AAUP chapter berated Interim President Michael Kotlikoff, for an “egregious threat to bedrock principles of academic freedom” that could “degrade the quality of education” at Cornell.

In fact, Kotlikoff had simply responded to an email from adjunct law professor, who had complained about the approval of a course titled “Gaza, Indigeneity and Resistance.” 

It certainly appears that none of the AAUP professors read through Kotlikoff’s entire email before chastising him, because they somehow missed the key passage. 

Kotlikoff actually wrote that “Cornell’s Bylaws specify that faculty of the colleges, not central administration, are responsible for the curriculum” and approval of the course in question was “rooted” in academic freedom, which allows the professor “to choose the subject matter and method of presentation.” 

These three episodes typify what one critic has called “the fall of the AAUP,” sadly progressing from the abandonment of an admirable principle, to the endorsement of intellectual discrimination, and arriving at a near parody of snowflake academics who rail at imaginary dangers.  

You can read the entire essay at The Hill.

Posted by Steve Lubet on December 16, 2024 at 11:58 AM | Permalink | Comments (0)

Saturday, December 14, 2024

Saturday Music Post - Hey Jude

"Hey Jude," a 1968 non-album single, was the first cut released on the Beatles' Apple label. The original working title was "Hey Jules," written by Paul McCartney to comfort Lennon's son Julian, after John left his wife for Yoko Ono. It reached number one in the U.S., UK, Australia, and Canada. The promotional clip for the David Frost show was filmed in the middle of the recording sessions for the White Album. The clowning ends and the music begins at around 0:48 -- but the clowning is worth watching, as you can see at The Faculty Lounge.

 

Posted by Steve Lubet on December 14, 2024 at 05:33 AM | Permalink | Comments (0)

Friday, December 13, 2024

Hypocrisy and question-begging on standing

A few days late on this: Justice Alito (joined by Justice Thomas) dissented from denial of cert in Parents Protecting Our Children v. Eau Claire Area Sch. Dist., where lower courts found a group of anti-trans parents lacked standing to challenge trans-supportive policies. The lower courts relied on Clapper; Clapper's author, Alito, was not having it. He finished with this:

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their “ virtually unflagging obligation . . . to exercise the jurisdiction given them. ” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

Alito seems to want to single-handedly prove the point that conservative justices are abandoning standing now that conservative litigants are challenging liberal policies. This is of a piece with his dissents in Murthy (the jaw-boning case) or California v. Texas (standing to challenge an unenforceable law). He was not worried about courts avoiding such contentious constitutional questions as the validity of a federal law authorizing warrantless searches. Richard Re argues that the Court is, so far, holding the line on standing. Not so Alito.

Note the question-begging dishonesty in that last sentence. The "virtually unflagging obligation" goes to abstention--when to decline exercise jurisdiction granted. Standing (for better or worse) goes to whether jurisdiction has been granted. And it should not affect how the Court understands the scope of jurisdiction--courts do not expand their interpretation of standing (and thus jurisdiction) because of the virtually unflagging obligation.

Posted by Howard Wasserman on December 13, 2024 at 01:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 12, 2024

CFP: Civil Procedure Workshop X, June 2-3, Richmond Law

We are excited to announce that the 10^th Annual Civil Procedure Workshop will be hosted by the University of Richmond School of Law on June 2-June 3, 2025.

Overview

CPW X will give emerging and established civil-procedure scholars an opportunity to present their work in plenary and breakout sessions. Senior scholars will moderate the sessions and lead the commentary. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Call for Papers

We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a 1-2 page abstract by March 3, 2025. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. Papers at all stages of completion, including those likely to still be substantially incomplete at the time of the conference, are eligible.

Please submit your abstract online here.

Further Details

CPW X will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

If you have any questions, please feel free to contact Luke Norris ([email protected]) or Riley Keenan ([email protected]).

Additional information will be made available at this link.

Posted by Howard Wasserman on December 12, 2024 at 12:24 PM in Civil Procedure | Permalink | Comments (0)

Wednesday, December 11, 2024

Law school applications are way up! Let's wait on the parade

[republished from my Substack. Subscribers welcome!]

Let the bells ring out during this holiday season . . . for American law schools. Especially those schools who fret about enrolling a sufficient number of students and, further, students whose hard and soft measures promise that they will have a good chance of succeeding. Applications are up thus far, way up, and signs point to an abundance of riches for law schools more or less across the board. Moreover, concerns about minority student enrollment, concerns turbocharged by the Supreme Court’s decision restricting the use of racial preferences, are ameliorated by the evidence (at least thus far) that minority applications are up by a considerable margin.

While this is not the space to throw cold water on what is good news for law schools in their business objectives, I urge a pause to at least warn the collective us in legal education not to fall into the too-familiar trap of seeing the currently bullish market as an excuse of complacency, as an opportunity to eschew innovation because business-as-usual apparently is meeting the tenor of the times. Let’s be clear that a run up in applications doesn’t make any serious headway in addressing persistent problems, including:

• Sticky and mainly ignored is the traditional financial aid models of law school, models that invest greatly in merit-based aid for high flyer applicants on the idea that such students will be subsidized by below-median score students who will pay full freight. More applicants might mean larger classes, greater revenue, and therefore some incentive to ameliorate the equity effects of this common form of financial aid engineering. Yet, experience tells us that law schools do not ordinarily expand meaningfully the size of their classes in order to accomplish these goals. And nowhere should this comment be read as urging law schools to necessarily do so. Size matters, and the objectives of law schools to keep their educational program sensibly organized around a certain size so as to improve faculty-student ratio and job prospects for students in a legal marketplace that, while not unpromising these days, is still basically flat at best, should be maintained to the extent possible. However, the challenge is how to address the brute inequities of a system that incentivizes these familiar cross-subsidies from the “bottom” to the “top.” Increasing law school applications shouldn’t blind law schools to the fact that current financial aid problems raise problems to be solved, not excused by the claim that “all schools basically do the same thing” and such;

• Efficiencies and innovation in pedagogy should be important goals, in both rainy and sunny times. Law school curricula continues to remain largely static. The rise of clinical education was, to be sure, an extraordinary development in legal education. But that development is a half century old and the traditional model that puts experiential education as an important complement to, but never really a substitute for, classic doctrinal instruction persists. Perhaps that is how it should be, for innovation doesn’t necessarily mean scrapping the status quo for something altogether different. Disruptive innovation isn’t measured by how many plates are broken immediately; rather, it begins with serious, intentional scrutiny — that is ideologically eclectic and evidence based — of current educational programs and structures, taking account of the rapidly changing demands of the legal marketplace. Such scrutiny should be ongoing; and it is a misnomer to put it into the bucket of episodic curricular “reform.” Reform follows assessment, and deep and broad assessment should be a core element of the ceaseless strategic planning that law schools and universities of which most are a part ought to do — not occasionally, but always. This is as true when application patterns are rosy, as when they are dire. True, big innovations in law school curricula are less necessary as part of advertising campaigns to recruit students from “boring” competitors when the applicant pool is nicely robust. But, after all, public relations is not the primary reason for reassessment and reform; the reason is that law schools aspire to be the best possible engines of coherent, socially and economically relevant, progressive, and efficient legal education. The centrality of this goal ought not to turn on one or two-year revenue projections;

• Viewed overall, law schools should not make the mistake of tying applicant eagerness (is it the Trump bump? is it economic opportunity? is law now a “hot” profession? Who knows!) to agnosticism about what they are getting from their law schools, in terms of curriculum, services, career support, ambition, etc. Two things can be true at once: More young people are motivated to apply and attend law school and, second, these same young people have high expectations and of the law schools they hope to attend. There is at least some ambient evidence that students of the present and near-future are demanding more of their educational institutions. An innovation-minded law school may not viewed best as a school that merely caters to a limited set of student expectations, but, rather, as a school that deeply considers how to create educational schemes and structures that are designed to educate in holistic, pluralistic, and pragmatic ways students who will leave and take roles and positions in the legal marketplace broadly defined, and who will, we should hope, will be attentive to the outsized influence of lawyers in the world. They will be protectors of the rule of law, instruments of justice in the trenches as well as in the meta-design of institutions and constitutional guardrails. Moreover, they should learn well in our law schools about the persistent access to justice crisis that inflicts the U.S. and should think about creative ways in their own careers to address the A2J crisis;

• All of these goals (and others that could be listed) must be considered and hopefully achieved in an ecosystem made up of individual law schools which are relentlessly innovation-minded. A temporary applicant boom should not be an excuse to take the pedal off the metal. On the contrary, while this welcome increase helps shine a spotlight on the state of law schools and, in the minds of deans and others, enables these schools to shine more brightly at least for a while, this is a golden opportunity to consider our predicaments and our promise. An innovation mindset is what is required at the very least.

Posted by Dan Rodriguez on December 11, 2024 at 02:13 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (6)

AALS session on ways to contribute to the work of the Uniform Law Commission

The Uniform Law Commission, the nation's premier organization involved in statutory law reform, is very much on the lookout for promising ideas by legal scholars on uniform statutes.  One commissioner put it to me this way:  "Law review articles come to at the end a conclusion that 'there oughta be a law!' and there is nice avenue for bringing cool ideas to the ULC for study and maybe implementation."  And so the ULC is at the ready to bring your good proposals to the real world.

At this year's AALS, folks from ULC and others will be gathering with any and all interested to talk about the work of ULC, to answer questions, and to brainstorm about the synergies between academic scholarship and practical law reform.  Stewart Schwab (the former dean of Cornell Law) and I have been involved over the last several months in promoting these connections and we encourage you to learn more about ways you might get involved in the good work of ULC.

Here are the details:

January 9, 2025

8:00 am – 9:30 am

Session Type: AALS Arc of Career Programs

Room: Room 202

Floor: Level Two South

This will be a roundtable discussion about how to turn ideas for laws into state legislation. The speakers will discuss how the Uniform Law Commission (ULC) chooses projects, as well as the study and drafting process for projects. The speakers include two appointed Uniform Law Commissioners, one of whom is the current chair of the Scope and Program Committee, a reporter for a drafting committee, and the research director for a ULC standing committee who also served as an observer/adviser to the drafting committee for the 2022 Uniform Commercial Code amendments.

It is organized by Juliet Moringiello of Widener (and a ULC Commissioner).  Speakers include: Steve Willborn (Nebraska), Laura Napoli Coordes (Arizona State), Carla Reyes of SMU.  

 

Posted by Dan Rodriguez on December 11, 2024 at 02:02 PM in Daniel Rodriguez | Permalink | Comments (0)

Saturday, December 07, 2024

Tell me what a heckler's veto looks like, this is what a heckler's veto looks like

Prattville, AL removed Prattville Pride's float from the annual Christmas parade after Prattville Pride notified the city about vague threats (to throw eggs and water at the float) and asked for additional security and police presence. The mayor said the city would "not put the rights of parade participants ahead of the safety of tits (sic) citizens." Judge Huffaker of the Middle District of Alabama was having none of it, enjoining the city from keeping Prattville Pride out of the parade and ordering the city to provide police protection for the float and to enforce criminal laws as appropriate.

The court recognized that "the heckler’s veto is what the Court has before it today." That term has been abused of late, used (including by free-speech proponents) to cover loud-and-obtrusive counter-speech that makes life difficult for one set of speaker-and-willing-listener. The "preferred first speaker problem" (in which the first speaker is deemed a speaker and opposing speakers a form of censorship) reflects this over-expansion of the concept. This is what the concept means--one group threatens unlawful activity because it dislikes a speaker and the government's solution to potential crime is to silence the speaker.

Also, kudos to Judge Huffaker for FN 3: "During the hearing, the Court provided counsel for the City with a hypothetical where it asked whether the City would react the same way and remove a float of Alabama fans who wanted to celebrate their Iron Bowl victory in response to similar threats from Auburn fans. Counsel stated that the City would do so. The Court seriously doubts that."

Posted by Howard Wasserman on December 7, 2024 at 12:35 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday Music Post - Got My Mojo Working

"Got My Mojo Working" is closely identified with Muddy Waters, but it was actually written for Ann Cole by Preston "Red" Foster in 1956. Cole was a moderately successful R&B artist who recorded for Sol Rabinowitz's Baton label. She opened for Muddy on a national tour in 1957 and made the mistake of including "Mo-Jo" (as she called it) in her set. Muddy heard it, loved it, and decided to record it for Chess Records when he got back to Chicago. Cole's recording and Waters's ended up being released in the same week, and of course his was by far more famous. He also claimed the copyright, though his changes were minimal; litigation followed, with royalties eventually being paid to Foster and his family.

Muddy Waters's mainstream breakthrough was a Newport in 1960. The harp player was James Cotton, with Otis Spann on piano, both of whom also led their own important bands. You can see them in the first clip at The Faculty Lounge. Ann Cole's recording is the second clip. If you keep scrolling through them, there is some historical commentary.

Posted by Steve Lubet on December 7, 2024 at 06:32 AM | Permalink | Comments (0)

Friday, December 06, 2024

ADL new experimental study on discrimination against Jewish job candidates

The Antidefamation league released this week a new study that uses the longstanding design of identical resumes varying only names and signals of identity - such as participation in ethnic sports leagues or associations. The experiment includes a good number of observations, 3K emails: across many the United States the results, statistically significant and quite robust, were that Jewish sounding names got fewer callbacks than Western European names, and Israeli sounding names received even fewer.

A few observations: this was specifically for administrative jobs – would be interesting to replicate in other sectors and types of jobs  and specifically in lower skilled versus higher skilled jobs like high tech / programming / engineering / medicine / law. Second, all the (fictional) applicants were female – one could hypothesize that discrimination may be even more pronounced for Israeli male applicants given the past year and how protests have become violent in certain places, like in Los Angeles where the study seems to show some of the bigger gaps between applications. It is interesting that in only two cities – NY and Philly – there was no such finding of discrimination – which may be consistent with a high percentage demographically of Jewish employers.

Finally, I will underscore that indeed it is difficult to detect discrimination at the hiring stage [as opposed to firing/promotion when the employee has more info) so these studies are valuable; both federal and state laws protect against discrimination on basis of race, religion and ethnicity but discrimination in employment remains pervasive. I actually wrote about this longstanding method of resume studies in my book The Equality Machine - here is a snippet of that section:

Would an Algorithm Hire Lakisha Washington?

We worry that algorithms are black boxes—in other words, opaque and difficult to understand (which they often are). But what about the black box of the human mind? Human decision-making in the hiring realm involves dozens of recruiters, interviewers, co-workers, clients, and supervisors, each a small black box of their own. By contrast, using technology, we can check our intuition and innate human bias by employing machines to help us quantify and analyze information. We need to strive to integrate the best of both worlds—human and machine decision-making.

Two decades ago, a group of psychologists began running résumé experiments. They sent more than 5,000 identical fictitious résumés differing only in the applicants’ names to 1,300 employers in response to job ads posted in Boston and Chicago newspapers. The pretend applicants were named Greg Baker, Jamal Jones, Emily Walsh, and Lakisha Washington. The results were telling: “white-sounding” names received 50 percent more callbacks for interviews. That study was so illuminating that researchers all over the world began replicating it, manipulating other protected identities in the fictitious résumés. These studies have consistently found gender, race, age, and sexual orientation discrimination in hiring using résumé manipulation.

Twenty years of these résumé studies have been frustratingly consistent: despite social efforts and legal rules, human bias thrives. In all sectors—not least of all in the tech industry itself—despite decades of anti-discrimination laws on the books and diversity and inclusion training in place, workplaces still demonstrate bias in recruiting and hiring. To be sure, using technology to supplement or replace human decision-making carries risk and is not a panacea, but it has the potential to mitigate our innate human bias. University of Chicago professor Sendhil Mullainathan, who co-authored the original résumé study twenty years ago, argues that algorithmic bias is more readily discovered and more easily fixed than human bias. Studying what algorithms do, Mullainathan says, is “technical and rote, requiring neither stealth nor resourcefulness,” which makes discovering algorithmic discrimination more straightforward. Humans on the other hand, Mullainathan warns, are inscrutable in a way that algorithms are not. Even when the algorithms’ workings are opaque – or a blackbox – we can more systematically check the outcomes they produce to monitor for bias. When Mullainathan and his collaborators first conducted their résumé experiment—before the internet became the primary vehicle for job searching—it was a complex covert operation. They created banks of fictitious résumés, collected job opening data, faxed fake applications to prospective employers, and waited to receive job interviews or offers in order to identify the human bias that the study revealed. Nowadays, we can detect bias and imbalance in searches and screening in a much easier and more immediate way.

Technology also changes the way we can prove discrimination when disparity is detected. In my work as an expert witness in discrimination cases, I see how difficult it is to convince a judge and a jury that what happened to an employee was the result of bias. These cases have become even more difficult to prove as discrimination has become more subtle and furtive. Before Congress enacted Title VII of the Civil Rights Act in 1964, ads explicitly stating that women and minorities “need not apply” were commonplace in the job market. Now, the smoking gun of discrimination—such as the Idaho law specifying that “males must be preferred to females” in appointments for certain positions, a law that led to the landmark U.S. Supreme Court decision in Reed v. Reed—is mostly a thing of the past. Discrimination today is more subtle and more disguised. In hiring decisions, employers usually do not have formal, discernible rules on what weighs heavier among the many factors considered—experience, skill, education, personability, references, the likelihood that an applicant will accept an offer, and so on. Often, companies will just say that they are looking for the employee who is “the best fit.” Employment discrimination litigation is therefore notoriously difficult, especially when an applicant has not previously worked for an employer. And even when an employee has worked at the organization for a while, most evidence is circumstantial. Employers shift their explanations and proffer decision-making rationales that can be impenetrable to outside scrutiny.

Even more importantly, when we find that people are biased, what can we do about it? Litigation is a long, arduous, and after-the-fact process. It can financially compensate the employee who was discriminated against, but to what extent does it change hearts and minds—and most importantly, institutions? We can bring in sensitivity training and develop departments dedicated to diversity and inclusion, but it’s very hard to debias humans. Systemic, lasting change has been elusive.

Enter algorithmic decision-making. Done right, it can overcome the flaws of human decision-making. As Mullainathan says, “software on computers can be updated; the ‘wetware’ in our brains has so far proven much less pliable.” With these new pliant machines, we can expand how job opportunities are communicated; expand the applicant pool by identifying more inclusive formats and language; and employ screening measures that reject past, demonstrated human biases. We can then monitor and detect exclusions and continue to improve screening measures. As we explore each of these stages of the employment process in the following pages, we will see how, while a data point that an algorithm provides may be tainted by human bias and unequal realities, AI can continuously improve; algorithmic processes can be audited and corrected swiftly in a way that a human mind simply cannot. This malleability and adaptability vastly outclasses our current hiring practices, which rely on biases that continue to shape recruiting, mentoring, hiring, evaluation, and promotion processes.

 

 

Posted by Orly Lobel on December 6, 2024 at 12:38 PM | Permalink | Comments (2)

Trans rights and social movements

I had interesting email exchanges with readers regarding my posts on trans issues. I wanted to lay out a few of the additional issues (unresolved) about social movements:

• MLK, Thurgood Marshall, and others went all-in during the '50s/'60s/'70s, which proved the right move. But would it have been wise, or successful, in the '30s/'40s. Where is the trans-rights movement now? I would have thought it was closer to the '50s after Obergefell; now it feels like March 1877.

• The Black Civil Rights Movement was the first modern mass civil-rights movement; it operated on a blank federal constitutional and statutory slate and challenged an existing legal scheme (Jim Crow laws in place for about 50 years). Other groups--women, disabled individuals, LGB--followed on that model, challenging long-standing laws that either were part of the historical firmament (women's inequality) or had never been considered (the way the world works against people with disabilities) And there was some degree of "if this historically disadvantaged groups enjoys protection, so should we."

    The trans-rights movement misaligns because it operates in mature constitutional system--it is copying prior movements rather than inventing them. Trans people seek to fit themselves into an existing statutory landscape and to be treated as their identified (rather than assigned-at-birth) gender; states have enacted new laws targeting the group after it pushed for recognition or room to operate within the existing regime. For example, hormone therapy exists, but states now prohibit one group from obtaining that therapy for one purpose.

• There is an interesting order-of-operations problem--does government enact restrictions when groups begin advocating or do groups advocate against existing laws. The former seems more targeted and more cruel. It seems the former is at work for trans people--new laws enacted explicitly and expressly to prevent them from doing what they sought to do or hoped to achieve under existing laws and systems. By contrast, MLK moved against existing Jim Crow laws; Southern states doubled down on defending those laws but did not enact new laws. And no one attempted to enact new express prohibitions on disabled people. On the other hand, states enacted Jim Crow in response to Reconstruction. It probably depends on the moment in history in which one looks.

• Movement strategy is historically determined. It is harder to tell Group M to bide its time (especially within our modern understanding of the harms its members suffer) when Groups A through L have already established their rights. So MLK had to bide his time in the 1940s because he had nothing to build on; trans activists have 80 years.

• Size matters. Trans people represent less than 1 % of the population, compared with women representing 1/2 the population and Black people 10-15 %. It is easier for the state to target such a small group (obviously), more difficult to create a critical mass to support it, and easier for voters and others to say "why do you care so much" about issues that do not affect them. It thus is rhetorically and politically important to turn the numbers issue, to place the shame on those who would bully such a tiny group.

Posted by Howard Wasserman on December 6, 2024 at 11:42 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, December 05, 2024

Happy Repeal Day!

On this day, in 1933, the 21st Amendment was ratified, repealing the 18th, which had provided for the prohibition of the "manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes[.]" For an excellent book about the Prohibition experiment, its history and context, and its (very interesting) legal and constitutional implications and legacy, check out Daniel Okrent's Last Call.

One of the (many) not-done things on my list of "things I'd like to do as a law professor" is a seminar-course, based on Okrent's book, about Prohibition (broadly understood), including its connection to immigration, anti-Catholicism, the rise of federal criminal law, census and districting shenanigans, legal moralism, etc.  Someday . . . 

 

Posted by Rick Garnett on December 5, 2024 at 08:42 AM in Rick Garnett | Permalink | Comments (5)

On the Biden Pardon (with Jed Shugerman)

Jed and I wrote up our views about why the Biden pardon is unconstitutional at the Boston Globe.  It is obviously is a companion piece to our WaPo column on Trump's threatened self-pardon.  If you are having trouble with the Globe paywall, here is a PDF.

Posted by Ethan Leib on December 5, 2024 at 08:27 AM | Permalink | Comments (0)

Tuesday, December 03, 2024

Major trans rights, minor trans rights, and political expediency

Jonathan Chait argues that Democrats must distinguish "major" from "minor" trans-rights questions and take a stand on the major questions while leaving minor (and, coincidentally, unpopular) issues alone. According to Chait (for whom this is bound up with sensitivity to accusations of being anti-trans):

The major questions about trans rights are: Do some people have the chance to live a happier and more fulfilling life in a different gender identity than the one to which they were born? Do some of these people need access to medical services to facilitate their transition? Do they deserve to be treated with respect and addressed by their chosen names and pronouns? Do they deserve equal protections from discrimination in employment, housing, and military service? Must society afford them access to public accommodations so as not to assault their dignity?

* * *

Democrats mainly ran into trouble because they either supported or refused to condemn a few highly unpopular positions: allowing athletes who transitioned from male to female to participate in high-level female sports, where they often enjoy clear physical advantages; allowing adolescent and preadolescent children to medically transition without adequate diagnosis; and providing state-funded sex-change surgery for prisoners and detainees.

Some thoughts about why it is not as simple as he makes it sound:

Continue reading "Major trans rights, minor trans rights, and political expediency"

Posted by Howard Wasserman on December 3, 2024 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, December 02, 2024

Why California Should Not Be Admitting Teenagers to Law Practice

California has lately been admitting teenagers to the practice of law, including two siblings who each passed the bar at age 17 after graduating from an on-line law school. This is a very bad idea for everyone involved, as I explain in my new column for The Hill.

Here is the gist:

Just because teenagers can become lawyers doesn’t mean they should

Twice in the past two years, the bar examiners announced that 17-year-old applicants had passed the bar examination, to be sworn in as lawyers upon reaching 18.

I don’t doubt the brainpower and studiousness of the teenagers, a brother and sister, born a year apart, who began their law studies while still in middle school. Nonetheless, it is simply impossible for even the most book-smart 18-year-old to have acquired the life experience necessary for the competent practice of law.

At 18, they still cannot buy alcohol or tobacco, obtain an interstate commercial driving license, become an airline transport pilot, qualify as a professional fiduciary, deal blackjack in a casino or purchase handgun ammunition. 

There are true prodigies whose unique talents benefit from intense development from an early age. But law practice is not music or gymnastics. It is basically a job. It can be rewarding, fulfilling and socially productive, but apart from transient novelty, there is no advantage to starting young. 

You can read the full column at The Hill.

Posted by Steve Lubet on December 2, 2024 at 11:02 AM | Permalink | Comments (0)

Saturday, November 30, 2024

Saturday Music Post - I Am a Pilgrim

"I Am a Pilgrim" is an American hymn dating to the middle of the nineteenth century. It was first recorded in 1924 by the Norfolk Jubilee Quartet, a prominent African American gospel group (don't miss their clip at the bottom of the post). I first heard it by Doc Watson, and then by the Byrds. I can't explain it, but I just love Doc's four note base run between "not" and "made by hand." Many of the other artists have picked it up, but not all -- which is too bad in my book.

You can decide for yourself at The Faculty Lounge.

Posted by Steve Lubet on November 30, 2024 at 06:27 AM | Permalink | Comments (0)

Monday, November 25, 2024

Fiduciary Parenting of Trans Youth

With Skrmetti about to be argued at the Supreme Court (on a state ban of gender-affirming care for minors), I thought I would post my draft on "first-responder" parents and their role in the constellation of care for trans youth.  The paper is here and the abstract follows:

This Article aims to evaluate whether parents of minors who identify as transgender have moral duties to help their children achieve
social or medical transition and whether they have moral permissions to take a more oppositional posture—and, if so, under what conditions. Very child-centered theories of parenting might recommend that children should get to make their own decisions without parental gate-keeping; and very parent-centered theories of parenting might recommend that parental interests or values are appropriate to guide decision-making, instead. A particular account of fiduciary parenting, the view developed and defended here, does not require that parents always accede to their children’s demands for gender transitions. However, parents have obligations stemming from their fiduciary role to evaluate their children’s demands with careful deliberation, conscientiousness, and sensitivity to dynamic change. In particular, children can require from their parents a decision procedure that properly orients parents towards children’s welfare rather than parents’ own and a decision procedure that also doesn’t center “irreversibility” as a core anchoring mechanism, an entailment of careful and conscientious deliberation. It is an essential moment—as the Supreme Court is about to take up state bans on gender-affirming care for minors—to gain more clarity about how “first-responder” parents should be managing demands from their children about their gender expressions.

Posted by Ethan Leib on November 25, 2024 at 04:13 PM | Permalink | Comments (0)

60 Minutes swallows nonsense campus-speech narratives

In an absurdly fawning piece on University of Austin as the answer to cancel culture and student self-censorship (uncited, but obviously based on FIRE's statistic nonsense) and thus the only place committed to open-minded and all-sides debate (as opposed to a politically one-sided grift).

The piece reveals the stickiness of the conservative narrative of censorious liberal students attacking conservative speakers and making them "feel" unwelcome while the right commits the free-and-open exchange of ideas. t never distinguishes between government censorship and one person's First Amendment desire to disassociate from another person because the latter spews hateful ideas. And it never mentions: 1) Florida's actual laws restricting what faculty and students can say, teach, and learn on campus and seeking to eliminate tenure or 2) four university presidents (whom the piece mentions at the outset as an example of left censorship) lost their jobs because Republican legislators and wealthy donor Bill Ackman (mentioned as a UATX supporter) believed they had failed to sufficiently restrict or sanction pro-Palestinian campus speech. It thus continues the narrative that the real threat to free speech is an offended sophomore at Oberlin and not the laws of a state.

Posted by Howard Wasserman on November 25, 2024 at 02:49 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Consistency and Transparency in Assessment: The Case of Grading "Participation"

In my upper-level, seminar-type courses, I generally provide, in the syllabus, something along the lines of "X% of your final grade will be based on participation" (with the rest based on papers, etc.). The X varies, but I suppose it's generally been about 30%.  (In larger and first-year courses, I do not do this, and instead say something about the possibilities of "grade bumps".)

I have to admit/confess, though, that -- even after 25 (!) years -- I have less than complete confidence in my ability to consistently, predictably, rationally "assess" "participation" and I (still) worry about the possibility that the exercise sometimes (often?) ends up as just a gussied-up bit of intuition and impression. I wonder, have others identified good ways to avert, or at least minimize, this possibility? One idea I heard from a lawprawf was to ask each student to "assess" his or her own "participation" -- to assign him or herself a letter grade for it -- and to use that self-assessment . . . in some way. Have any readers done that? Comments are open!

Posted by Rick Garnett on November 25, 2024 at 11:21 AM in Teaching Law | Permalink | Comments (2)

Trans rights, the 2024 Election, and Trump II (Updated)

I have been tossing around ideas for this post since the election. My thoughts are not fully formed, but I wanted to get them down on paper.

• Trans and non-binary people form a vanishingly small percentage of the U.S. population. The question is what to do with that information. One narrative criticizes Republicans for obsessing and seeking to suppress a tiny group whose existence does not affect their lives--"why do you rally around hurting such a small group." A second criticizes Harris and Democrats for caring so much--"why do you care so much about (and feel the need to express support for) such a small group." Unfortunately, the latter has taken hold among Harris voters, particularly in light of evidence suggesting that Trump's anti-trans rants (the "She's for They/Them, Trump is for you" ad and Trump's stump bullshit about boys coming home from school as girls) moved meaningful numbers of votes. On the second narrative, it is not enough for Democrats to downplay support for this group--Harris should have responded by joining Trump and Republicans in piling on this group and agreeing to push them out of the polity. And the required move becomes not just declining to "promote" trans issues (whatever that means), but refraining from protecting trans people when the other side attacks. The idea seems to be that a small vulnerable group does not need protection.

Continue reading "Trans rights, the 2024 Election, and Trump II (Updated)"

Posted by Howard Wasserman on November 25, 2024 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, November 23, 2024

Independent Agency or Codependent Agency?

As I watch for various aspects of "realignment" that render dated a great deal of commentary that relies on "left vs. right" or "conservative vs. liberal" classifications, I was struck by one passing example of this, from Senator Elizabeth Warren:

Information and discourse from That Place (where That Place equals any social media platform) are to be treated skeptically if not contemptuously, and it is always worth remembering that many or most of the statements from public figures and elected officials on such sites come from the minds of smart, earnest young creatures whose instructions are imperfect and who lack fully developed prefrontal cortices. And I have no reason to doubt this prediction from Senator Warren, or at least (assuming someone else wrote the tweet) "Senator Warren" in a more corporate sense. I have the general sense that she maintains a strong interest in the agency. Strictly speaking, though, shouldn't we consider it odd for a member of the legislative branch to pledge in advance the support of an independent executive-branch agency, as if this single senator can speak confidently for it? Could she not at least instruct her staff writers to maintain the niceties of form?   

Posted by Paul Horwitz on November 23, 2024 at 05:19 PM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - I Can't Turn You Loose

"I Can't Turn You Loose" was written and recorded by Otis Redding in 1965. It was originally released as the B-side of "Just One More Day," a song that I cannot remember and may never have even heard. Just goes to show that nobody can really predict hits.

Don't miss Steve Cropper's interview at the bottom of today's post at The Faculty Lounge.

Posted by Steve Lubet on November 23, 2024 at 06:21 AM | Permalink | Comments (0)

Friday, November 22, 2024

Norberg on the InfoWars/Onion Bankruptcy Controversy

I asked my colleague Scott Norberg, a bankruptcy expert and a member of the BK Rules Advisory Committee, for his thoughts on the InfoWars/Onion Bankruptcy controversy. (TL:DR -- The Onion bought InfoWars in the bankruptcy auction in a bid supported by the Newtown-parent creditors; InfoWars, the State of Texas, and a bunch of right-wing people are objecting in typically performative terms). Scott's comments after the jump.

Continue reading "Norberg on the InfoWars/Onion Bankruptcy Controversy"

Posted by Howard Wasserman on November 22, 2024 at 11:25 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)