Month: August 2020

The past several months have caused many of us to reflect on how we can better incorporate issues of race and racism into our courses. I wanted to highlight two new links regarding race, racism, and business law courses. First, Carliss Chatman, Cathy Hwang, and Ben Edwards put together a statement on race/racism in business law that they are inviting all law professors to sign. The statement states in full:

“We are law professors, and many of us write and teach about business law. We think race and racism are important to the study of business law, just as they are important to the study of any area of law. From slavery and redlining to lack of opportunity in the workplace and limited access to capital, race and racism have always been part of business and business law. To our colleagues and our students: we welcome the opportunity to engage in these discussions and commit to thinking hard about how to incorporate them into our research and our teaching.”

They will share and update a list of signatories on the Business Law Prof Blog here, and you do not need to teach business law to sign it. I personally think these issues are incredibly important, and I welcomed the opportunity to sign the statement – thanks to Carliss, Cathy, and Ben for putting it together!

Second, there was a recent discussion on the AALS Business Associations listserv in which many professors shared resources related to race, racism, and business law. I put the resources into a shared document that anyone can access, and I will continue to update it. If you have any additions to this document, please send them my way at [email protected].

Like many other areas of law, I think the business law community has real work to do in this area. I look forward to continued dialogue and action on these issues.

Posted by Jessica Erickson on August 31, 2020 at 07:11 PM

Comments

I need facts before I could ever endorse this. The killing of black males either convicted of crimes or in the act of committing them and resisting a lawful arrest is hard to regard as racism, since twice as many whites die at the hands of the police as blacks.

Posted by: William John Carney | Sep 8, 2020 8:16:46 PM

I teach Business Associations and I have tried very hard over the years to keep my politics out of it and I’ll be damned if I’m going to start now. Race has nothing to do with the important questions of corporate law. Discriminatory access to capital and discriminatory practices in hiring and promotion aren’t relevant at all to corporate law although they are important matters that should be addressed in Civil Rights classes. In my humble opinion, it’s an abuse of power to use a platform as the Law Professor to address tangential political issues that are irrelevant to the subject matter of the class.

Posted by: Douglas B. Levene | Sep 2, 2020 6:01:20 PM

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Posted by: Daniel Tan | Sep 1, 2020 8:30:33 AM

As has been widely discussed, today is Judge Griffith’s last day on the court, so it wanted to get some things out.

First, the en banc court in an 8-2 per curiam denied Sullivan’s Michael Flynn’s petition for writ of mandamus, concluding that Flynn had an adequate alternative remedy via district court proceedings on the motion (which may result in dismissal) or appeal or further mandamus of any district court decision. The court also declined to order the case reassigned to another district judge. Griffith wrote a short concurrence, emphasizing the purely legal (rather than political) nature of the dispute in the case.

Second, Griffith wrote for a 2-1 panel that the House (held by the en banc court to have standing to sue to enforce a subpoena against Don McGahn) could not sue to enforce because it lacked a cause of action to sue. Neither Article I (the source of the right to subpoena information), equity, nor the Declaratory Judgment Act provides an existing cause of action. Congress can fix the problem by enacting a statute creating a right to sue. This confirms why, as I wrote following the en banc decision, standing is such a colossal waste of time. It also reflects a D.C. Circuit (and perhaps Supreme Court) that seems determined to push the House to start fining and jailing witnesses who refuse to comply with subpoenas by cutting-off the civil-suit alternative. Like its predecessor, it may not withstand en banc review.

Judges Rogers dissented, arguing that Art. I and the DJA provide a right to sue. She continues to argue there is jurisdiction over the action under § 1331, a point the majority found unnecessary to address. McGahn argued there was no jurisdiction over an action by the House because no statute grants that jurisdiction, while § 1365 grants jurisdiction over actions by the Senate. The implication is that § 1365 provides the sole basis for jurisdiction in actions by the Senate, superseding § 1331. And since there is no House counterpart to § 1365, the House cannot rely on § 1331. But this ignores the plain text of § 1331, which gives jurisdiction over anything that arises under, without Congress having to do more. As Rogers pointed out, § 1365 was enacted when § 1331 had an amount-in-controversy requirement, so a separate statute was necessary to give jurisdiction over all possible actions. Many separate jurisdiction grants were enacted for similar reasons. But since Congress eliminated the AIC requirement in 1980, none has been read as anything more than vestigial and certainly not as precluding § 1331.

Posted by Howard Wasserman on August 31, 2020 at 03:01 PM

The answer, I think, is “no.” But apparently opinions may vary.*

I should think it is neither possible nor wise to categorically “eliminate” particular words from legal or any other form of pedagogy. Of course there are many words one might choose not to use in teaching. Given that I teach constitutional law, sometimes including free speech, and legal ethics, I am a little surprised by the words I have not used in my classes. My choices are influenced by many factors. Certainly sensitivity to the views and needs of my students is one of them, although it’s not necessarily dispositive. Not begging for trouble is probably another factor, although I try not to let it be. A major point of tenure is to ensure that when the choice is between avoiding trouble and making an independent academic judgment about what teaching or scholarship require, one chooses the latter. (The same is true before tenure, at least for good professors and good institutions. It certainly should be.) Like most things in pedagogy, those decisions, whether they turn out to be right or wrong, are contextual, particularized, and multivarious. What else could they be?

*[In fairness, although the language in the title of the post is apparently the exact language that a law school dean used (albeit the story is from Above the Law), she did not say precisely what she meant by it. It is far from clear to me that a dean in a public law school could order that any particular word be “eliminated” from “legal pedagogy” at his or her institution, and pretty clear–at least I think it is–that most professors would, at a minimum, politely ignore such an order.]

Posted by Paul Horwitz on August 30, 2020 at 10:32 AM

Sarah Palin sued The Times over an editorial describing a link between the shooting of Gabby Giffords and Palin’s PAC’s publishing a map featuring gun sights “targeting” Democratic districts. The case has a convoluted procedural history. The district court held an evidentiary hearing on a 12(b)(6) motion seeking information to aid the plausibility analysis, then granted a 12(b)(6); the Second Circuit held that the evidentiary hearing was improper, then reversed the order granting the 12(b)(6).

The district court on Friday denied summary judgment to both parties. Palin had moved, arguing that stare decisis on constitutional issues is less rigid and that actual malice should not apply in the changed factual and media circumstances of the 55 years since New York Times. The court made quick work of rejecting that argument, explaining the difference between horizontal and vertical stare decisis and dropping the cute line that “binding precedent . . . does not come with an expiration date.”*

[*] Usually.

The court denied the defendants’ motion. It concluded that a reasonable jury could find the editor (and thus the paper) acted with actual malice as to alternative, defamatory meanings of the words in the editorial and actual malice as to the falsity of that alternative meaning. This is an unusually (although arguably appropriately) forgiving view of actual malice. The court sounds at several points as if it believes the evidence favors the defendants and does not believe (by clear-and-convincing evidence) they acted with actual malice. But the court is conscious that the weighing of evidence is not appropriate for summary judgment and must be the subject of a trial.

Posted by Howard Wasserman on August 29, 2020 at 02:41 PM

After Janus v. AFSCME declared invalid union agency-fee statutes as violative of the First Amendment , the next question became whether the non-members could clawback frees from within the past 2-3 years (within the statute of limitations). The Seventh, Second, Sixth, and Ninth Circuits said no and without dissent, relying on some form of good-faith defense to § 1983–because the unions believed the fees permissible under state law and judicial precedent.

The Third Circuit joined the chorus in an action against the Pennsylvania Teacher’s Union, but revealed the first deep divides. Judge Rendell adopted the prevailing view of a good-faith defense, along with principles of equity and fairness, to preclude liability where a private actor relied on prevailing law. Judge Fisher concurred in the judgment, relying on a historic principle that that judicial decisions declaring laws invalid or overruling precedent did not generate retroactive civil liability. And Judge Phipps dissented, arguing that neither defense existed at common law, so the actions to recover past fees should proceed.

Curious to see if this issue makes its way to SCOTUS before the Court fully pursues qualified immunity.

Posted by Howard Wasserman on August 28, 2020 at 05:25 PM

I. The Spreadsheet

In the spreadsheet, you can enter information regarding whether you have received

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b) a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as “offer accepted” may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.

Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

II. The Comment Thread

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

You may want to take a look at the many questions and answers in the threads from 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019, and 2019-2020. In general, there’s quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

Posted by Sarah Lawsky on August 28, 2020 at 04:32 PM

Comments

Thinking about the current, and likely future, hiring market, does anyone have advice for how to make oneself more attractive to law schools when coming from a TT position in a non-law discipline (with a PhD and a JD)? Is it harder to get in from the outside (but while already an assistant prof) than from an entry-level position w/o the current faculty job? This market seems brutal for everyone, and *initial* interviews don’t even materialize for candidates with PhDs, multiple top-50 flagship law review placements, existing TT jobs, and strong records of teaching law-related classes. Is the best advice to keep publishing in the best law reviews? stop publishing in non-law journals or doing law+ or other, less-legal types of research? network more? Something else? (I imagine a mix of all of this, plus lots of luck?)

Posted by: Non-Law Prof in Adjacent Field | Feb 12, 2021 5:17:27 PM

Where are the those new spring semester job posts people had been promising would open up? I’m not seeing much…

Posted by: New spring jobs | Feb 4, 2021 1:32:53 AM

Where are the those new spring semester job posts people had been promising would open up? I’m not seeing much…

Posted by: New spring jobs | Feb 4, 2021 1:32:52 AM

In the spring, do hiring committees ever add new files to their list of candidates under consideration if/when people they already invited for talks start accepting offers from other schools?

Posted by: anon fellow | Jan 23, 2021 7:52:10 PM

Hi – apologies for cross-posting: The Yale Information Society Project is accepting applications for its WIII Fellow, running the Initiative on Intermediaries and Information. It’s an incredible opportunity to spend a year to two years with Jack Balkin and the brilliant folks in the Yale Law community. Deadline to apply is Feb. 10. If you are interested in knowing more please feel free to reach out to me, or to Nik Guggenberger our Executive Director: https://law.yale.edu/isp/initiatives/wikimedia-initiative-intermediaries-and-information/wiii-blog/come-join-us-yalewikimedia-fellowship-accepting-applications

Posted by: Current WIII Fellow – @M_Karanicolas | Jan 23, 2021 11:37:36 AM

Thank you. This is very helpful.

Posted by: New | Jan 22, 2021 8:58:02 AM

@New – well, it works differently in the US. Start with one of the many guides available on the internet. For example https://www.law.uchicago.edu/careerservices/academicmarketmechanics or https://law.yale.edu/sites/default/files/area/department/cdo/document/cdo_law_teaching_public.pdf.

Posted by: Response to New | Jan 22, 2021 8:29:03 AM

Hi everyone,

I’m not from the U.S., and I was wondering how does one offer herself for an academic position here. Where I’m from it is required to contact the Dean, who later on screens candidates based on cv and publications. After the initial screening there is a more formal process of a committee, job talks and so on. How does one initiate the process in the U.S? Or even knows which law schools are hiring?

Thank you

Posted by: New | Jan 21, 2021 4:28:07 PM

Anyone heard anything from Mich. St. regarding their chaired family law position?

Posted by: AnonProf2 | Jan 21, 2021 3:33:05 PM

Anyone hear of any activity on the lateral front?

Posted by: LateralAnon | Jan 21, 2021 3:05:23 PM

@namingthename Ask Sarah Lawsky 🙂 Sarah usually posts them, but not until later in the spring. Someone in the comments below suggested posting earlier this year, to help schools know which candidates are off the market.

Posted by: Ask Sarah | Jan 16, 2021 1:14:26 AM

There used to be a chart with the hired fellows each year. Is that avaible? If so, where can we find it?

Posted by: namingthename | Jan 15, 2021 2:36:31 PM

Well this has been a depressing job cycle. Only a few interviews, no offer. Unless more positions open up this spring, guess I’ll be going back to the drawing board this fall. Now time to look for academic adjacent research jobs, I guess. Curious to know how others fared and if the data shows any skew regarding gender or race or disability in this year of pandemic inequality.

Posted by: Depressed Candidate | Jan 15, 2021 1:08:03 PM

“For example, at Oxford or Cambridge, a top student would learn 500-600 tort cases, 400-500 contract cases, and perhaps 300-400 criminal law cases. Most cases require learning only the main principle of the case. Academic critiques of the law and dissenting opinions are also required to do well.”

This would not be terribly helpful in the practice (much less teaching) of law in the US. I question whether it’s the wisest course in other legal systems, but I can’t say.

What’s the marginal value of learning the 100th case, let alone the 300th or 600th, especially if all you’re learning about it is the “main principle” (holding?)? If my credit hours were doubled, I’d do some more cases, sure, but not double. I’d add other things. In the US anyway, memorizing hundreds of cases sounds like an engineer’s idea of what law school should be like.

As “comparative law teaching” noted, federalism may be one difference here. But if I taught in a law school that exclusively focused on a single jurisdiction (to my knowledge, no such law school exists in the US, not even in Louisiana where there might be a case for that), I still don’t think I would ramp up coverage of cases much. We would do more state statutes and state regulations, and probably learn more things about aspects of law practice in the state (local rules, norms at local firms, etc.).

Posted by: Memorizing 500 cases is not a great way to do US legal education | Jan 13, 2021 11:36:02 AM

Interesting discussion. Part of the reason for the difference may be the difficulty of teaching 50 systems of substantive law in the U.S. (plus the federal system). In other countries, I imagine one is commonly teaching about a single unified legal system. So it makes more sense to memorize important cases, since they have authority throughout the country. But in American law teaching, it is less useful to memorize specific cases establishing principles of tort, contract, or criminal law. Knowing the name of a case in Minnesota would not generally be helpful in Nevada. And casebooks are generally not published about law specific to one state. Constitutional law may be the exception that validates the rule. There is a lot more case memorization in conlaw classes, and it is a more unified system of law (state constitutional law is not widely taught).

Posted by: comparative law teaching | Jan 11, 2021 10:52:34 PM

Yeah, from a US perspective, this is an odd question. We don’t think of courses in terms of numbers of cases. Some courses cover lots of cases, others cover just a few but more in-depth, or they cover more rules or law review articles. From a US perspective this question sounds like “how many numbers do you cover in a math course?”

Posted by: ‘case loads’ | Jan 11, 2021 12:28:45 PM

Thanks for the responses. I am astonished. In the non-US common law world, the situation is reversed. Higher ranked schools require knowledge of more cases than lower-ranked schools, and only the latter allow open-book examinations.

For example, at Oxford or Cambridge, a top student would learn 500-600 tort cases, 400-500 contract cases, and perhaps 300-400 criminal law cases. Most cases require learning only the main principle of the case. Academic critiques of the law and dissenting opinions are also required to do well. However “law and economics” is hardly discussed, but the teachers are aware of its importance in the US.

I had looked at some US textbooks but that had puzzled me. For example, a leading English criminal textbook has ~1200 cases in the table of cases, while a US one has ~350. For contract law, there was a similar gap, but the proportional difference was closer to 6/10, if I recall.

Sorry to hijack this thread, but thank you very much for the responses.

Posted by: 4:31pm Anon | Jan 10, 2021 3:34:18 PM

@4:31pm anon –

Most U.S. casebooks are organized to include a mix of edited cases (depending on the casebook and course, taking up between 2-10 pages of the book), and “notes” on those cases that reference numerous other cases (with rarely more than a paragraph per referenced “notes case”). In my previous post, I used “non-notes case” to refer to the semi-edited cases, where students will read basically the entire relevant portion of the opinion and there will be substantial class discussion on it. Most class reading will also includes numerous “notes” cases — depending on the casebook, usually something like 5-15 per every non-notes case. If you haven’t looked at a U.S. case book, that should be your first step. A core U.S. course is unlikely to cover the entire book, but it will likely cover much of it (maybe 600-700 pages?).

As “cases” mentioned, most U.S. law exams are open book, so the emphasis is not on memorizing any of these cases, but on being able to use them effectively in (usually) some sort of semi-simulation exercise, like an “issue spotter.”

Posted by: anon3 | Jan 10, 2021 2:26:18 PM

@4:31 pm As a U.S. lawyer, I found your question rather difficult to answer. I don’t think we think of law school courses in terms of number of cases here. There isn’t really any emphasis on memorizing (or even deeply learning) too many cases, if that’s what you’re asking about. At many law schools, most exams are open-book. The higher ranked the school is, the less emphasis there is on learning any cases or any laws at all.

Posted by: cases | Jan 10, 2021 3:09:42 AM

Thanks for explaining that. I’m not sure I know what “non-notes case” means. Does that mean the lecturer goes over 60-100 cases over the course, but the students need to learn other cases too?

As for why I’m asking, it’s because I’m trying to get a sense of what is expected in the US. I’m coming from another common law jurisdiction where for criminal/tort/contract the lecturer may cover at least 200 cases and students would be responsible for learning more. Caseload seems lighter in US, but maybe it’s because of Socratic method teaching and going deeper into major cases.

Posted by: 4:31pm Anon | Jan 9, 2021 10:22:03 PM

@4:31pm Anon:

It totally depends on the course and the teacher. I think it’s pretty standard to cover 2-3 non-notes cases per class period in a lot of subjects, and for classes to meet ~35x per semester, so that maybe averages out to 60-100 over the course of the semester? I think most professors expect their students to have some grasp of notes cases as well, too. Why?

Posted by: anon3 | Jan 9, 2021 5:37:19 PM

Random question: foreigner here. Can anyone tell me how many cases are covered (or students are expected to know) in a semester-long US class on: Criminal law, tort law, or contract law?

Posted by: Anon | Jan 9, 2021 4:31:09 PM

@StillWaiting same here though I was just given “early January,” so they still have time. I doubt anyone would mind if you checked in mid next week or so. Good luck!

How’s everyone doing out there? The numbers looked bad at the start of the cycle, and we had that depressing Plea from a Candidate post. Are people ok? Did y’all get jobs?

Posted by: Also Waiting | Jan 9, 2021 12:27:59 AM

Still waiting on a school after being told to expect a vote (post-callback) on a given day “at the earliest.” It’s been a couple days since that date but since there are a lot more important things going on in the world this week, I’m trying to keep things in perspective. Anyone experienced something similar?

Posted by: StillWaiting | Jan 8, 2021 1:10:29 PM

Got a wave of rejections today. Guess everyone is back to work!

Posted by: Rejected | Jan 7, 2021 8:57:00 PM

Got a wave of rejections today. Guess everyone is back to work!

Posted by: Rejected | Jan 7, 2021 8:56:59 PM

Well, damn.

Posted by: LateralAnon | Jan 5, 2021 7:39:07 PM

Most successful lateral candidates are those who were recruited, not those who simply applied on their own. So if you fall into the latter, don’t be surprised if you never hear.

Posted by: AnonProf | Jan 5, 2021 2:05:25 PM

Does anyone have any insights regarding the lateral market? When should one expect to hear about screening interviews, call backs, etc.?

Posted by: LateralAnon | Jan 5, 2021 1:33:00 PM

It’s confusing. I hope that next year the headers can be clarified a bit. E.g., “ding without interview”; “ding after screener”; “ding after callback.”

Posted by: Dings | Jan 1, 2021 11:25:52 AM

How are folks using the different “ding” options? Is a “Callback ding” used to say you were dinged AFTER a callback or following one? I’m trying to understand the difference between a callback ding and an offer ding, unless the callback ding is used to mean one did not receive a callback with the offer ding then used to refer to a rejection after a callback. Thanks in advance (and Happy New Year everyone!)

Posted by: Clarifying | Jan 1, 2021 10:44:02 AM

“Any idea of whether schools will move before the end of the year? Or hiring will only resume after the new years?”

In my experience, nothing happens in law schools between December 15 and January 15 at the earliest.

Posted by: Anon | Dec 22, 2020 3:40:25 PM

Any idea of whether schools will move before the end of the year? Or hiring will only resume after the new years?

Posted by: EndofYear | Dec 22, 2020 11:41:37 AM

Is a short tenure track even unambiguously a good thing? Aren’t there advantages to having more years to meet the requirements?

Posted by: Tenure Q | Dec 22, 2020 10:06:23 AM

To the tenure negotiation question: this seems like a bad idea to me. Many of the 2-4 year tracks are probably the result of a recently hot junior lateral market. The successful juniors either get tenure upon lateraling or negotiate that as the price of staying at their home institution.

Posted by: Anon | Dec 22, 2020 9:21:38 AM

I would say I am surprised how quick some of my colleagues get tenure at certain schools; it seems like at some schools the clock is only 3-4 years, whereas at others it can be 6. But these are institutional things and are not something I doubt any entry level has any leverage to negotiate. Everyone is awesome on the market that is getting interviews so it’s not like you can say “I will only accept your offer if you give me a 3 year clock.” Short of having a very extensive record, it would come off as presumptuous to do this I think.

One, I assume, is in the best position to negotiate early tenure if they later get competing offers and you would be willing to move to the other schools that is offering you tenure.

And titles for law school don’t mean the same as in the social sciences; many schools start out profs as “associate profs” and they don’t have tenure. The tenure issue may be something to think about but the actual title is something most universities have set policies on; all entry law profs are either assistant or associate. The best I think an entry level could do would be mention if it is possible to go up early for tenure; most places allow a 1 year early tenure if you want to go up and that is nothing special. I suppose someone could ask for 2 year early but that would be highly unusual. Many people may want to delay especially if the pandemic is inhibiting research.

Posted by: anon | Dec 22, 2020 1:32:51 AM

What is an “offer ding”? Someone got an offer and then rejected it? Or someone did a callback interview but then received no offer?

Posted by: Dings | Dec 21, 2020 9:43:00 PM

@rank @anon — while I agree that one probably cannot (and more importantly should not) negotiate entry rank I do think that there are a couple of things worth highlighting: (1) different institutions have VERY DIFFERENT tenure clocks. While I was on the market there were schools that said their clock was a three-year one, and where I ended up the clock is a six-year one. These things matter and while not something to negotiate, definitely are a consideration when you’re choosing between different offers. Understanding the tenure process at the school you pick is important and should be one of the things you learn more about (including by asking to see the law school’s tenure and promotion guidelines and bylaws). In fact, after being hired making some research, teaching,. and service decisions as a junior faculty with a general mindset towards those tenure policies is probably wise; (2) at some schools the fact that you start as assistant does mean that there will be two (not one) promotions in your future (to associate and then to full/tenure). Again, not something you can really negotiate (because of institutional structures and internal policies) but nonetheless something you should be prepared for. While every new faculty get’s annual reviews by the P&T committee, having to meet a certain requirement for promotion at some halfway point during your tenure clock is something you should come prepared for and thus familiarize yourself early with the requirements.

Posted by: OnRankandTenure | Dec 18, 2020 9:26:00 AM

Cal Western hired at least one entry-level assistant professor, according to Twitter.

Posted by: Cal Western | Dec 17, 2020 1:33:42 AM

there is no fast tracking tenure with a title. whether law professors are assistant or associate is institution specific. many law schools, because of the higher pay of law profs, have entry level come in as associate, but it is just a name;it matters nothing for tenure nor does it shorten the time.

treating law profs differently since the associate for law prof does not mean anything has caused some schools to go back to the normal system and call entry levels prof assistant profs instead. This is still the minority but some are changing back to this. this makes the law school more in line with university practices.

I doubt this is something you could negotiate and it might look odd for not realizing the school’s practices and the historical irregularity of law schools calling profs associate profs to even raise it. Look at the young law profs at your school; they are either all associate or all assistant. If your school has assistant profs, then the associate have tenure. If your school only has a junior associate then the associate means nothing with regard to tenure.

Posted by: anon | Dec 17, 2020 12:13:40 AM

This probably ranges per individual situation but any advice on whether it’s worth negotiating entry as an Assistant or Associate Prof (and fast tracking tenure)?

Posted by: rank | Dec 16, 2020 9:38:51 PM

I’m on the market and I also appreciated Anon Safe’s message. (Congrats on your offers!). I would be willing to travel to visit schools post-offer, but my personal situation is different. People have different preferences and risk calculations. It would be unfortunate if an unwillingness to travel was wrongly interpreted as a lack of interest.

Posted by: Candidate | Dec 16, 2020 10:29:29 AM

Come on, Anonhiringchair. The whole point of this thread is to share experiences and data points. So now if somebody shares positive experiences they are accused of bragging? Seems a little extreme. Personally, I appreciated hearing how somebody else is approaching this issue.

Posted by: Anondevilsadvocate | Dec 15, 2020 5:28:50 PM

Anon Safe,

I’m sorry, but what is the point of your post? Nobody is saying people can’t decide for themselves, so your decision is your decision. And I would be surprised if anyone on here hasn’t already gotten the memo regarding masks and social distancing.

I’m guessing you just wanted to brag about having received more than one offer, which is quite frankly gross.

Posted by: AnonHiringChair | Dec 15, 2020 3:13:01 PM

I’m a current candidate, and I will not be visiting any of the schools where I have received offers. None of the schools interested in hiring me are within driving distance, and I do not think it is wise to travel by air (plus local transport, indoor tours and dining, and hotels) right now, especially if you plan on seeing family during the holiday season. It sucks, but I am not willing to risk my health or the health of my loved ones (not to mention everyone I come into contact with in traveling).

If you choose to travel, please wear masks and distance as much as you can. Also, if tests are easily available in your area, a test before you travel can bring peace of mind, as well as isolating ~5 days after you return, getting tested, and only socializing with your family and friends after you receive negative results and/or complete a 7-14 day quarantine. Especially if you plan on socializing indoors or if anyone in your family is elderly, disabled, or otherwise high risk.

Posted by: Anon Safe | Dec 15, 2020 3:00:23 PM

It seems a bit odd to me that a school would not pay to bring you out post-offer, but even so, I would visit before accepting if possible health-wise. It may mean a long drive; if you’re uncomfortable in a hotel, a full-house Airbnb would do. You could also self-isolate and/or get tested before you go to reduce the chances of your accidentally bringing the virus with you. I realize these things are a pain and not free, but it is an important decision.

That being said, mid-December is not a representative period on campuses or in many towns, even during regular times. But you can get a sense of the vibe.

Posted by: Anon | Dec 15, 2020 1:56:45 PM

If you can’t visit the school in person due to Covid (good for you limiting travel!), the next best thing is to thoroughly vet the school and location as much as you can by talking to people at the school and people you know who may have experiences and opinions on the school. It’s not the same as getting an in-person feel for it, but you’ll be able to get a sense of things that may be helpful. I have found that even profs currently at the school are willing to be somewhat open about some issues. They don’t want to end up with an unhappy colleague who leaves after a year. Hiring you is in investment.

Posted by: Talkback | Dec 15, 2020 12:43:03 PM

Some possibilities:

1) Schools typically don’t want to exclude most candidates until someone has accepted (i.e., they might have to come back to the well); 2) The committee is made of people who are inconsiderate; or 3) They’re considerate, but they can’t get over the anxiety associated with communicating bad news.

Before someone jumps in and says “those are terrible reasons,” I agree. It’s one of the ugliest parts of this process.

FWIW, I always keep candidates in the loop–even if it’s just to say “you’re an alternate” or “we’re not pursuing your candidacy.” I will say, though, you’d be shocked at the nasty/passive-aggressive responses I often get, which certainly doesn’t incentivize committees to keep folks in the loop (not to mention the harm to the candidate’s reputation).

Posted by: AnonHiringChair | Dec 15, 2020 12:28:46 PM

I don’t understand the system of “callbacks”. Why do law schools not simply send rejection notices to unsuccessful applicants? Why does everything have to be shrouded in mystery? It shows no respect for applicants AT ALL.

Posted by: Annoyed | Dec 15, 2020 12:20:26 PM

For those of you with offers who are trying to decide, you can definitely ask the school if they’ll pay for travel to the area, assuming you feel comfortable flying/staying in a hotel. You won’t get a chance to meet colleagues or students in person, but you’ll get a better sense of whether the town/city is a place where you’d want to live. You might be able to do a remote tour of neighborhoods with a real estate agent and walk around campus. Know that some schools can’t do this – budgets are frozen across the board – but if they can’t, they may be able to come up with some virtual alternatives.

Posted by: JuniorProf | Dec 15, 2020 11:28:23 AM

I don’t think reneging on offers is common at all and the previous poster is right: this is a small community, word gets around, and it will hurt you.

Posted by: Anonprof | Dec 15, 2020 10:11:30 AM

I’d also be interested in hearing thoughts on how to best handle the new reality of COVID. There’s a real possibility some of us may need to choose a school without stepping foot inside the building. Any advice for how we should deal with this reality?

Posted by: Covid | Dec 15, 2020 1:28:44 AM

To gambling man’s point. Ethics aside, how common is it for candidates to renege on an offer after acceptance? If heard it happens more often than one thinks. If that is true, is there really reputational damage outside the school you backed away from?

Posted by: Anon | Dec 14, 2020 10:20:36 PM

Any thoughts on how to handle the unique phenomenon of this COVID year where candidates are being asked to accept offers without possibly ever having visited the school or the area?

Posted by: covid_year | Dec 14, 2020 10:10:17 PM

@explosive_offers Ask for extensions politely. If higher-ranked schools don’t get back to you in time, you have the choice of taking the offer in hand or taking a gamble and waiting. It’s a buyer’s market, so be prepared for even low-ranking schools to not grant extensions. Sometimes it may be worth waiting a year and going on the market again.

Do not under any circumstances renege on an offer after acceptance. The legal academic community is small, and word gets around.

Posted by: gambling man | Dec 14, 2020 9:04:16 PM

Any advice on how to handle explosive offers? How to treat an offer with a 1-3 weeks timeline from lower ranked schools when you know you are still in the run at higher ranked places or have other scheduled callbacks?

Posted by: explosive_offers | Dec 14, 2020 8:33:07 PM

Wayne State appears to be done with hiring.

Posted by: Wayne State | Dec 14, 2020 4:16:12 PM

Has UC Irvine filled their constitutional law position?

Posted by: Irvine | Dec 12, 2020 10:56:48 AM

@spring hiring: Yes, we’ll post when we can.

Posted by: hiring committee member | Dec 10, 2020 9:18:34 AM

Any early bets on whether next year’s hiring cycle will be better? Law school enrollments are going up nationwide, and budgets are unfreezing. Thoughts?

Posted by: Next year | Dec 10, 2020 4:22:04 AM

»

Moderate Mentality reminds us that the federal flag-desecration law remains on the books, because a decision declaring a law invalid and unenforceable does not erase it from existence. So, yes, MM, federal officials could use closed-circuit TV and facial-recognition software to try to hold people accountable. As long as those officials do not mind losing in court and being made to pay damages and attorney’s fees.

Posted by Howard Wasserman on August 27, 2020 at 06:27 PM

Comments

In Utah there has been one attempt to prosecute misconduct by a prosecutor just once in 20 years. Maybe things are different elsewhere.

Posted by: J.Bogart | Aug 30, 2020 10:42:40 AM

Still not sure what you mean that he “could” bring the charges. That it’s not a physical impossibility? It is not something he could *lawfully* do.

Posted by: Marty Lederman | Aug 29, 2020 7:05:45 PM

Marty: A prosecutor willing to withstand the consequences could bring those charges. He would enjoy absolute immunity from any civil action. And perhaps he will take his chance with ethical charges. Most prosecutors won’t. Some might.

Marcus: No. A judge would be obligated under Loving to dismiss the charges, because vertical stare decisis binds courts. That is the point–the law remains on the books, but cannot be successfully enforced in court in light of controlling precedent.

Posted by: Howard Wasserman | Aug 29, 2020 2:13:21 PM

Alabama did not repeal its anti-miscegenation law until 2000, and South Carolina in 1998. The Supreme Court decided Loving v. Virginia in 1967. So what you’re saying is that prosecutors could bring criminal charges against inter-racial couples, and those individuals could be sentenced and imprisoned for the “crime” of miscegenation, unless they themselves brought a lawsuit challenging the application of the unconstitutional law?

Posted by: Marcus | Aug 29, 2020 2:00:23 PM

If a prosecutor brought such a case knowing it’d be tossed, that’d violate the defendant’s due process rights (as well as the First Amendment). And prosecutors don’t have the authority to act in deliberate violation of the Constitution. So I don’t know what it means that they “can” bring such charges.

Posted by: Martin Lederman | Aug 29, 2020 12:02:58 PM

Statutes are laws. But a law must be enforced. A court will not enforce a law that is constitutionally invalid. So any attempt to enforce the law–by arresting and trying someone or threatening to arrest someone–will fail in court, because the court must apply Eichman and declare the law invalid as to that individual.

Posted by: Howard Wasserman | Aug 28, 2020 8:31:45 PM

I have trouble identifying what you mean by law here (and previous discussions) of invalidity rulings. At some point you address this? Are statutes not laws in the US system? Is there an enforceability condition? Your claim re remedies here is close to nugatory. The threat of fees here is too small to matter, particularly given your departmentalism. If the enforcer is in a different jurisdiction how could you get to bad faith?

Posted by: J. Bogart | Aug 28, 2020 8:12:24 PM

Ex Parte Young. And fees are available under the EAJA.

Posted by: Howard Wasserman | Aug 28, 2020 4:03:46 PM

What is the cause of action for injunctive relief against a federal official or agency that would permit attorney’s fees?

Posted by: Slippery Slope | Aug 28, 2020 3:54:43 PM

Good points, all. Unless they bring a pre-enforcement injunctive action, which does allow for attorney’s fees. And there’s a good argument that the “bad faith” exception to Younger would allow that action even in the face of a pending prosecution, given how obvious the state of the law under Eichmann and Johnson.

Posted by: Howard Wasserman | Aug 28, 2020 3:13:56 PM

You’re assuming the Bivens cause of action extends to this kind of First Amendment violation by federal officials. Big assumption. And prosecutors would have absolute immunity.

And even if you’re right, there’s no fee shifting statute for Bivens actions.

So at the end of the day, people can be arrested and charged by federal officials under an unconstitutional statute and maybe someday get some emotional distress damages — which will be dwarfed by the attorneys fees they needed to pay to bring the suit.

Posted by: Slippery Slope | Aug 28, 2020 3:02:57 PM

Vice President Pence’s RNC speech this evening was to include criticisms of professional athletes for kneeling during the National Anthem. The criticism has always been disingenuous nonsense–critics demand peaceful protest, then tell the players they are peacefully protesting the wrong way.

So the players will try something new tonight: Not playing. The Milwaukee Bucks announced a boycott of this evening’s Game 5 of their opening-round series. The Boston Celtics and Toronto Raptors discussed doing the same in their second-round game scheduled for Thursday. So the NBA canceled all games. No word on whether the Milwaukee Brewers (who have a home game Wednesday evening) or MLB will follow suit, although I doubt it. Update: I spoke too soon and happily stand corrected. The Brewers canceled their game. Other MLB teams are discussing doing the same, including the Mariners, who have the most African American players in MLB.

So what will be wrong with this form of peaceful protest? Does not playing disrespect veterans and troops? Is it wrong to politicize sports? Will Pence change his speech to decry cancel culture while calling for boycotts of this “politicized” NBA? Will everyone admit that the objection is to the message–that police are behaving badly–and nothing more neutral than that? Stay tuned. (Updated: No way on that last one).

August 28 Update: The NBA playoffs will resume Saturday. The league and union agreed to establish a social-justice coalition focused on voting, civic engagement, and criminal-justice and police reform. It also calls on teams that own their arenas to work with local election officials to convert the arena into a polling place. It is interesting that the push for racial justice has swerved into voting rights–recognition that voting rights are as endangered and that everything else happens only if people can vote and vote for officials who will pursue that agenda.

Posted by Howard Wasserman on August 26, 2020 at 05:23 PM

Comments

Remember when I said I would delete comments when you are obnoxious (and untruthful). There you go.

Posted by: Howard Wasserman | Aug 28, 2020 11:43:01 AM

The players’ protest (which is really a “strike” – might want to look that one up) is, like most strikes, directed at their employers. The NBA, which is really a collective of the various NBA teams, has a tremendous amount of money at stake – including, for example, contracts with television channels, who in turn have contracts with, for example, advertisers. The players have articulated specific demands to the NBA and to team owners. All of this is publicly reported and one might imagine doing some research before criticizing the players as big dumb dumbs who don’t know what they’re doing. Reporting also indicates that the players are at least initially happy with the steps pledged by the NBA and the team owners, such that they’re willing to continue the playoffs.

The argument that you are allowed to criticize any individual method of protesting without disagreeing as to the substance of the protest is utterly nonresponsive to the point that Howard is making, which is that objections to substance are frequently disguised as objections to method. That any one objection may actually be to method is largely irrelevant. Over a long enough time frame it has been made clear that no matter what peaceful protests are undertaken, they will be criticized, and typically in a manner disguised as relating to the method of protest. Indeed, professional athletes are routinely attacked in right-wing media for even just *saying* anything left-of-center. In this context it’s entirely reasonable to just dismiss any criticism of methods of protest out of hand as sophistry. This is particularly the case when the criticisms of method are: (a) shrouded in whataboutism – as if the players should be expected to solve a longstanding human rights problem in another country before addressing the fact that people who look like them are murdered by the state in this country for no reason (a human rights situation in China that, I might add, is being completely ignored by the Trump Administration even as its domestic political allies raise the situation to attack NBA players); (b) uninformed by, I don’t know, even five minutes of reading about the goals of the strike and what has happened since.

Posted by: anon | Aug 28, 2020 10:54:30 AM

But that’s what I find disingenuous, especially coming from people who themselves have not been critical of China.

Posted by: Howard Wasserman | Aug 27, 2020 12:25:24 PM

Understood. I generally agree, and I recall your criticism of the response to the comments about China/Hong Kong. The only reason I bring that up is because I think the response from LeBron and league in that instance actually undermines other player protests and makes it too easy for critics to dismiss them.

Posted by: TJM | Aug 27, 2020 12:09:31 PM

As to China: LeBron was wrong in his reaction to Daryl Morrey–and I criticized LeBron and the NBA at the time. I am less inclined to criticize players for protesting this while staying silent on China–one need not respond to all injustices.

As to criticizing method apart from message: I can and do separate them, when they are separable. But 1) Many critics are suggesting that the players are not within their rights or are morally wrong to protest this way, as opposed to suggesting that it is not effective (the “shut-up-and-dribble” crowd); 2) Many of these critics have targeted every other method (kneeling, t-shirts, video messages, etc.), suggesting the view that they are not within their rights or are morally wrong to use their positions as famous athletes to speak; and 3) The loudest critics are not, unlike TJM, prefacing anything with support for the message.

Posted by: Howard Wasserman | Aug 27, 2020 11:46:44 AM

Howard,

I completely disagree–there is nothing incongruent with criticizing the form of the protest while still being sympathetic to the protesters and their message. I write this as someone who does not watch basketball (and will not particularly miss any games that are not played), and as someone who is sympathetic to the message of ending brutality. Frankly, it is difficult for me to believe that you cannot separate those two aspects (persuasiveness/effectiveness vs. message), and that you cannot accept that others are capable of separating those aspects.

NBA players are free to protest however they damn well please, but I think this mode is ineffective for reasons I outlined below. The players apparently believe this is their best platform to convey the message. Good for them…but it doesn’t mean that it will actually be persuasive or bring about any real change because the only people who will internalize the message are the ones who are already on their side.

Also, to be fair, it is disingenuous for the league and players like LeBron to only endorse protests with popular messages while silencing/criticizing others who want to use the same platform to protest other injustices like China’s crackdown in Hong Kong.

Posted by: TJM | Aug 27, 2020 11:27:13 AM

There isn’t logic to it. Fortunately, no one said that.

Posted by: Howard Wasserman | Aug 27, 2020 11:22:33 AM

Why is it “nonsense” to object to conduct that disrespects our flag and country and to condemn rioting? One must accept kneeling during the national anthem as a condition to condemning rioting? Where is the logic in this?

Posted by: Harmon | Aug 27, 2020 11:11:23 AM

If a group attempts different forms of peaceful protest and every attempt is derided as the wrong manner, it suggests that the criticism of form is disingenuous. It suggests that what is really going on is a belief that a) this group of people should not speak or b) they should not express the particular message they are expressing. Which is fine. But own it.

Posted by: Howard Wasserman | Aug 27, 2020 7:55:39 AM

The more I think about it, the more I feel like this is a poor choice for conveying the message. First, as far as I could tell, the networks that were supposed to be broadcasting the games tonight simply went to other programming. It’s not like they stayed in the broadcast booth for the full three hours and showed an empty court. So other than the news stories, it seems like there was low visibility for the protest.

Second, the protest is not really directed to anyone who has the power to enact the change that is sought; are the owners the target? And it is unlikely that the NBA players will hold out playing until some sort of change occurs. That is, they will likely start playing games again within the next couple of days. Does that mean the protest was effective? If they really want to hit the owners in their pocketbooks, they would threaten to hold out and get the playoffs cancelled, but that would likely hurt the players just as much. When play inevitably resumes, I think this will look disingenuous.

Finally, to the extent that the lack of playoff basketball will cause households to search for something else to watch tonight, it seems ill-timed to boycott playing the same week that several major networks are broadcasting the RNC.

Posted by: TJM | Aug 27, 2020 1:59:04 AM

Honestly, I’m fine if the NBA stops playing forever.

That would be the greatest peaceful protest of all.

Weird that Howard seems to be upset that someone can peacefully protest and, at the same time, others can disagree with that protest or even think it’s the wrong form.

Posted by: thegreatdisappointment | Aug 27, 2020 12:32:26 AM

And on cue, here’s Rich Lowry: “The term virtue-signaling is overused, but what possible effect can this have, except harming the sport that has made these athletes rich and famous?” https://twitter.com/RichLowry/status/1298768827946283013

Posted by: David H Schraub | Aug 26, 2020 8:58:17 PM

Not sure that this is as effective; they will eventually have to play the playoff games. The MLB plays so many games as it is, will fans notice one night without it? Also, it probably would have been more effective to do this 3 nights ago, when the original shooting took place, rather than the day after protests turned violent and killed two others. Finally, it seems like this will result in at least some people watching the RNC who otherwise would not.

Posted by: TJM | Aug 26, 2020 8:11:13 PM

Players definitively have the right to protest and assert leadership in this pressing issue. And not playing is much more effective (as a form of protest) than just kneeling. But as soon as their paychecks start becoming smaller they’ll change their tune. Hopefully they won’t, but Lebron’s stance on China makes me think they’ll do.

Posted by: theRealAnonymous | Aug 26, 2020 6:58:58 PM

Seventeen-year-old Kyle Rittenhouse was arrested and charged with killing two people and shooting a third during protests in Kenosha. According to reports, Rittenhouse considered himself a part of the militia and was hanging around with adult members of a group called the Kenosha Guard, which had put out a call for people to come protect property.

In a Facebook posted addressed to Kenosha’s Chief of Police, the group urged KPD not to send members home in enforcing the curfew and seeking to “open a discussion” with KPD. The Kenosha County Sheriff said he fielded a call urging him to deputize armed citizens to patrol the streets, which he declined to do. But video from early in the evening (prior to the shooting) showed a law enforcement officer giving water* to a group of armed civilians (apparently including Rittenhouse) who are out past the 8 p.m. curfew and expressing appreciation for their being there in all their armed cosplay glory. Police also allowed Rittenhouse to leave the scene following the shooting, with an automatic a semi-automatic weapon over his shoulder, as witnesses identified him as the shooter.

[*] The sheriff insisted that his officers would give water to anybody. I am waiting for the video of police officers sharing water with people protesting police violence.

So, some possibilities (conceding that more and more accurate facts may emerge): A civil rights prosecution against Rittenhouse, based on some joint-participation theory. By expressing appreciation for their armed presence in a protest zone, not telling them to leave at curfew time, and supporting his efforts by sharing water, the police implicitly encouraged or supported Rittenhouse in his subsequent actions, making him a state actor. True, it is not Cecil Price agreeing to deliver Goodman, Chaney, and Schwerner to the Klansmen. But the officers sent a message.

Alternatively, a § 1983 action against the water-bearing officer (if not the department). This could be based on a state-created danger theory–the officer encouraged Rittenhouse and let him believe he could play cop with impunity, thus worsening the situation for the protesters and subjecting them to a greater risk of violence. (The Seventh Circuit has been forgiving in some SCD cases). Or on race- or speech-based retaliation theory–he encouraged the white person supporting the police, perhaps suspecting he might act against non-whites critical of police.

Update: The Chief of Police said that part of the problem was people being out after curfew and that if people respected the curfew they would be protected. But Rittenhouse was out after curfew and instead of telling him to take his large gun and go home, police gave him water. They are not helping themselves.

Posted by Howard Wasserman on August 26, 2020 at 04:40 PM

Comments

At least some people (including one op-ed writer in the NYT) claim that it is a class A misdemeanor for a minor to openly carry a firearm in Wisconsin. I’m not an expert on Wisconsin law and don’t have a view on whether this is true or not.

In any event, it’s irrelevant to the only important legal issue here, which is whether the shooter has a good self-defense claim to the charges of first and second degree murder and attempted murder. That seems to me to be purely a fact question: Did the shooter reasonably believe his life was in danger or that he was in danger of serious bodily harm when he fired his weapon? I guess a jury will have to decide that question unless the case pleads out. Of course, even if the the jury finds that the shooter acted in self-defense, they might find him guilty on the misdemeanor open carry charge, assuming that’s actually a thing.

Any federal charges here would be a stretch, to put it mildly.

Posted by: Douglas B. Levene | Aug 28, 2020 7:07:25 PM

Once again, thanks to @thegreatdissapointment for providing context and filling up some of the blank spaces left in the original post.

Personally, I find the following paragraph written by the original author to be unbecoming of a law professor: “If there were evidence outside right-wing fever swamps showing that he acted in self-defense, it would have emerged. And the police would not have charged him with First Degree murder if they could have charged a lesser offense. I have not seen it. Maybe I will turn out to be wrong.”

We do not wait for evidence to emerge before reaching conclusions as to someone’s guilt? We forget that police always overcharges as a bargaining tactic? Would we be that impatient and forgetful under a different set of circumstances?

I cannot imagine what it must feel like to be a law student these days if this is what goes on in class.

Posted by: theRealAnonymous | Aug 27, 2020 1:49:04 PM

For those interested, here’s a thread from NYT on the shooting. Given that the NYT’s would pounce on any chance to decry this kid as a crazy militia member, the shockingly professional attempt at journalism is worth looking at.

https://twitter.com/trbrtc/status/1298839097923063809

Posted by: thegreatdisappointment | Aug 27, 2020 10:10:23 AM

@Howard

“And the police would not have charged him with First Degree murder if they could have charged a lesser offense.”

Posted by: thegreatdisappointment | Aug 27, 2020 9:41:57 AM

I didn’t say #4 or anything close to it.

Posted by: Howard Wasserman | Aug 27, 2020 8:58:43 AM

1. https://twitter.com/AntifaWatch2/status/1298649108585099264 Here’s video that clearly shows the teenager trying to retreat. The child molester then throws something at him, and continues to chase him.

2. After this shooting, the teenager continued trying to retreat. That’s when the mob attacked him and he shot two more. Incidentally, each one he shot threatened him. One was jumping up to kick him. One was beating him with a skateboard, and one held a pistol. What’s even more interesting, is that the teenager didn’t shoot the guy with the pistol until the guy with the pistol lunged at the teenager.

3. Once that mob left, the teenager *continued* retreating.

4. Your contention: “he was charged with this crime rather than a lesser crime, so obviously he is guilty of this crime” is distressing. Actually, it’s scary.

Posted by: thegreatdisappointment | Aug 27, 2020 8:49:04 AM

If there were evidence outside right-wing fever swamps showing that he acted in self-defense, it would have emerged. And the police would not have charged him with First Degree murder if they could have charged a lesser offense. I have not seen it. Maybe I will turn out to be wrong.

If you want to make substantive relevant points without being robnoxious, I will leave the comments up. If you are obnoxious, I will take it down. If you don’t want me to delete the comment, don’t be obnoxious. Not complicated.

The § 242 argument is weaker than the SCD argument; I should have made that clearer. You may be right that a more conscious agreement between individual and officer is necessary.

Posted by: Howard Wasserman | Aug 27, 2020 8:00:39 AM

The idea that Rittenhouse opens himself up to a totally new crime by taking water from the police seems troubling to me. Surely that can’t be compatible with the rule of lenity and clear statement rules. Surely he couldn’t have reasonably foreseen that this would open him up to this new crime. Especially since he wouldn’t have had knowledge of how the police treated others with different views.

Indeed, I find it hard to imagine a bright line rule for when you are implicitly a government actor that includes this situation which wouldn’t be unconstitutional as infringing on the 1st amendment. You don’t want to transform a non-crime into a crime because the individual involved expressed support for the government.

Posted by: Peter Gerdes | Aug 27, 2020 1:13:42 AM

To be clear, Howard, you’re mad at the kid with the rifle, but you’re ok with the protester who got shot in the arm who pointed the gun at the kid, right?

Posted by: thegreatdisappointment | Aug 27, 2020 12:36:46 AM

Good to know that Howard is ok with a mob chasing a guy down in the street and then trying to beat him.

Posted by: thegreatdisappointment | Aug 27, 2020 12:36:06 AM

I want to give a shout-out to new book by my friend Carlton Larson that will be coming out soon. I’ve read On Treason in draft form, and it’s terrific. Here is the Abstract:

A concise, accessible, and engaging guide to the law of treason, written by the nation’s foremost expert on the subject

The only crime defined in the United States Constitution, treason is routinely described by judges as more heinous than murder. Today the term is regularly thrown around by lawmakers and pundits on both sides of the aisle. But as these heated accusations flood the news cycle, it’s not always clear what the crime of treason truly is, or when it should be prosecuted. Drawing on over two decades of research, constitutional law and legal history, scholar Carlton Larson takes us on a grand tour of the Treason Clause of the United States Constitution. Despite the Clause’s apparent simplicity, Larson demonstrates that it is a form of constitutional quicksand in which seemingly obvious intuitions are often far off the mark.

From the floors of the medieval British Parliament that codified the Statute of Treasons upon which the American law was based to the treason of Benedict Arnold, our nation’s founding traitor, to more recent events, including WWII’s “Tokyo Rose” and the allegations against Edward Snowden and Donald Trump, Larson provides a riveting account of treason law in action. On Treason is an indispensable guide for anyone who wants to understand this fundamental aspect of our legal system. With this short, accessible look at the law’s history and meaning, Larson clarifies who is actually guilty – and readers won’t need a law degree to understand why.

Posted by Gerard Magliocca on August 26, 2020 at 08:05 AM

Comments

Nice thanks https://prawfsblawg.blogs.com

Posted by: Zug | Aug 27, 2020 3:01:25 PM

The erroneous nomenclature that courts use in describing constitutional review contributes to common misunderstanding. Case in point: The Fourth Circuit decision affirming the convictions of two white-supremacist Charlottesville protesters under the Federal Anti-Riot Act, while declaring invalid certain portions of the statute as inconsistent with Brandenburg. The court talks about “invalidating” the statute, while commentators speak of the court “striking down” or “throwing out” the law, in whole or in part.

But the court did not do anything to the statute or those provisions of the statute–they remain on the books and they remain part of federal law, not erased or thrown out.

A more accurate description of what happens also would be cleaner: The court held that those provisions could not be enforced against these plaintiffs because doing so would violate their First Amendment rights, then affirmed the convictions because their conduct violated other provisions that could be enforced consistent with the First Amendment. The same is true of discussions of severability. The court does not sever some provisions from others–eliminating some and keeping others–because the entire thing remains on the books. I suppose what we call severability could be a way of asking whether the court can enforce some provisions and not others or whether the Constitution prohibits enforcement of all the language in the statute. Or it could be framed as Henry Monaghan described overbreadth–the presence of some constitutional defects means the statute cannot be applied, because there is a right to be convicted only under a constitutionally valid statute.

Either way, it would be cleaner to think about courts applying or not applying some provisions, rather than courts erasing them from existence.

Update: Zachary Clopton (Northwestern) reminds me that my discussion sounds in the debate between Justices Kavanaugh and Thomas described in a footnote in AAPC, which I wrote about after the decision and which Zach wrote about in Yale J. Reg. I think Thomas would agree with the approach I describe. Kavanaugh is correct in AAPC that future enforcement of the invalid provisions will be barred, at least in the Fourth Circuit, as a matter of precedent.

On further thought, this cases illustrates why injunctions should be particularized and why precedent does the real work. The constitutional issue arose in a government-initiated enforcement action–a criminal prosecution against these individuals, who then attempted to defeat enforcement by arguing that the law is invalid and thus cannot be enforced against their conduct. No one believes that the judgment in this case applies to anyone other than the defendants or that the government violates the judgment if it attempts to enforce the “invalid” provisions against someone else; in fact, the only thing the judgment does here is affirm their convictions. The prospective non-party effects of this decision come from the opinion, operating through precedent and stare decisis to require any court within the Fourth Circuit to dismiss a future attempt to enforce those provisions. So I return to my argument that a pre-enforcement injunction anticipates the enforcement judgment–and if the latter is limited to the parties, so is the former.

Posted by Howard Wasserman on August 25, 2020 at 03:55 PM

Several years ago, I started researching a book project on Justice George Sutherland, one of the “Four Horsemen” during the New Deal. I thought about doing a book on him or a collective biography of the “Four Horsemen.” For a variety of reasons, I decided that I did not want to write that book.

I still have the material that I accumulated on the Justice. Speeches he gave as a Senator, his Supreme Court opinions, and some items from his papers. If anyone is interested in writing about him or in anything related to him, then you should let me know. I may be able to help you by sharing what I have.

Posted by Gerard Magliocca on August 23, 2020 at 08:21 PM

Comments

His support of the 19A and the gender equality aspects of his Adkins v. Children’s Hospital opinion is interesting.

Jim?

Posted by: Joe | Aug 24, 2020 12:09:54 PM

No interest in Sutherland, thanks.

But do you have any information about Justice George Thorogood, pioneer of the jurisprudential boogie-blues? I am writing a book about him.

Posted by: Solo Drinker | Aug 24, 2020 11:08:15 AM