Month: April 2023

Dara Horn, who has a book and podcast about how people think and talk about dead Jews, argues in The Atlantic that focusing on Holocaust education makes current anti-Semitism worse. The piece is long, but here is a money quotation:

One problem with using the Holocaust as a morality play is exactly its appeal: It flatters everyone. We can all congratulate ourselves for not committing mass murder. This approach excuses current anti-Semitism by defining anti-Semitism as genocide in the past. When anti-Semitism is reduced to the Holocaust, anything short of murdering 6 million Jews—like, say, ramming somebody with a shopping cart, or taunting kids at school, or shooting up a Jewish nonprofit, or hounding Jews out of entire countries—seems minor by comparison.

And she closes thus:

I want to mandate this for every student in this fractured and siloed America, even if it makes them much, much more uncomfortable than seeing piles of dead Jews does. There is no empathy without curiosity, no respect without knowledge, no other way to learn what Jews first taught the world: love your neighbor. Until then, we will remain trapped in our sealed virtual boxcars, following unseen tracks into the future.

I serve on a Temple committee working on anti-Semitism programming. In choosing (for this year) to do a program for Yom Hashoah, we had a form of this conversation. Modern U.S. anti-Semitism, however much on the rise and however bad, is unlikely to lead to a repeat of the Holocaust. How we speak, educate, and push back against modern U.S. anti-Semitism should reflect that.

Posted by Howard Wasserman on April 4, 2023 at 07:59 PM

In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas’ exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.

The district court corrected that on remand. It granted defendant’s motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff’s argument that in finding an injury the court found state action. While the issues can be “one-and-the-same,” the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available–why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.

Posted by Howard Wasserman on April 4, 2023 at 02:47 PM

The state of the discussion cycle being what it is, it may be hard to remember just how much talk and advocacy there was in spaces like this and elsewhere about bar admissions around the first year and a half of the pandemic. Quite understandable, of course. But the problem with moments of advocacy around urgent situations is that it’s like love, futurism, and news commentary: it means never having to say you’re sorry. So I’m happy to spotlight this paper by Steven R. Smith, titled COVID and Bar Admissions. Its goal is to take a retrospective look at activities and advocacy around bar admissions in the summer of 2020 and 2021, to look at the various options that states went with (with a particular focus on the diploma privilege), and to note “the ‘disconnect’ between some law schools and bar admission authorities” during that period.

The paper is less normative than evaluative. But it does insist on one general descriptive and normative baseline: that “[t]he core purpose of licensing is public protection” [I would have been happier if he had added the word “ostensible” somewhere in there], and that the relevant question in considering law school and state bar responses to the pandemic, and licensing reforms going forward, is the public interest. I suggested at the time that too often, discussions focused instead, and often solely, on law students, whose interests are important but must take second place to the needs and interests of clients and the public. (Arguments were made at the time that rushing graduates into practice would serve the public interest for access-to-justice reasons, because those students would somehow get funneled into serving people in pandemic-related need or free up other lawyers to serve those people. I think that was more makeweight advocacy on behalf of students than serious or plausible argument. Smith notes that there are limited data on this point but suggests that the argument does not appear to have been borne out in fact.) The interest of clients and the public, not law students, is indeed the correct measure of any short-term accommodations or longer-term reforms, and it is useful to have an evaluative paper that proceeds with that standard in mind. Smith most certainly does not reject reforms to the admissions process in this article. But he does argue that any such reforms must be about the ultimate and not the intermediate beneficiaries of bar admission: the non-lawyer, non-law-student, non-law-school public.

I leave it to my betters to evaluate Smith’s paper and its strengths and weaknesses more fully. I cannot say how it will fare upon a more critical look. I assume there are other data out there. But I wanted to call attention to this paper because it deserves that more careful look. There was so much commentary at the time, but there has been virtually no acknowledgment or mention of Smith’s article so far. (It is easy to forget that there was a whole Facebook page, with hundreds of law professor members, devoted to law school pedagogy during the pandemic. It’s still going–and COVID gets mentioned in passing maybe once every dozen posts or so, if that. It would be nice if the die-hards on that page mentioned a paper like this, which actually addresses the topic.) Mutual flattery, sometimes misdescribed as “support,” is the order of the day on social media when law professors promote each others’ papers. Occasionally the word “brave” will be used, generally to describe papers displaying no particular signs of bravery. Inasmuch as Smith’s paper calmly examines an issue on which there was much strong feeling, and does so in a way that “centers” (to use a currently popular abuse of the language) the interests of people other than law students, it deserves the label more than much scholarship I see in our discipline.

Posted by Paul Horwitz on April 4, 2023 at 10:46 AM

Howie Erichson and I have uploaded our collaboration “Class Action Settlements as Contracts?” here. It is forthcoming in the North Carolina Law Review. An abstract follows:

Courts routinely declare that class action settlement agreements are contracts, and when called on to interpret and enforce such settlements, courts invoke principles of contract law. But is a class action settlement really a contract? The relevant agreement in a class settlement is struck between a defendant and class counsel or class representatives; it is not an agreement with class members. What binds class members to the deal is not that they agreed to it, nor even that they agreed to be represented, but rather that a judge found the matter suitable for class treatment and entered judgment approving the proposed settlement terms. It is the law of judgments, not the law of contracts, that prevents class members from pursuing claims released in a class action settlement. Although certain aspects of contract law are apt, the nature of class settlements calls for an interpretive regime that places less emphasis on intent of the parties and more emphasis on the scope of the deal that a judge saw fit to approve. This Article explores how courts should interpret the language of class action settlement agreements. It offers a framework that attends to the dual nature of class settlements and the agency risks that inhere in their negotiation. It encourages courts to stop reflexively treating class settlement disputes as contract disputes, but ultimately, whether courts call a class settlement a “contract” is less important than whether they understand the nature of these instruments and the modes of enforcement, interpretation, and construction that are appropriate to their implementation. Just as courts have deployed distinctive interpretive frameworks to shape contract law for other transactional contexts, they can similarly bring more thoughtful justice to the domain of class action settlement agreements.

Comments welcome!

Posted by Ethan Leib on April 3, 2023 at 05:43 PM

Posted by Steve Lubet on April 3, 2023 at 01:14 PM

Comments

Holy hemochromatosis, Batman #*%!

Who knew?

https://pubmed.ncbi.nlm.nih.gov/23703590/

Sounds like a Class Action for the Dynamic Duo #*%!

“The night is darkest just before the dawn.”

Posted by: N.D. | Apr 3, 2023 6:36:28 PM

Three stories and cases that illustrate the ideological/political divides over free speech.

• The trial court in Dominion v. Fox denied summary judgment for Fox; granted summary judgment for Dominion on falsity, defamation per se, factual, and certain affirmative defenses (such as neutral report); and denied summary judgment for Dominion on actual malice. So the case goes to trial, but Dominion has to prove only malice and damages; everything else is established. I have focused on (and taught about) the process in this case–how unusual it is for a plaintiff to get SJ on its claim absent burden shifting. Courts do not lightly relieve plaintiffs of their burden of persuasion at trial.

On the substance, the case illustrates the strangeness of the right-wing desire to overrule New York Times. Were Dominion required to prove negligence by a preponderance, the only issue at trial would be how much money Fox must pay Dominion. Does Fox somehow think that legal change will not blow up on them and similar outlets?

• We have the first judgment declaring invalid the latest right-wing obsession–prohibiting drag. Judge Thomas Parker (WD Tenn.) declared the law invalid as content- (and perhaps viewpoint-) based and granted a TRO prohibiting enforcement. By its terms, the goes beyond the existing obscene-as-to-minors law by singling-out OATM speech by drag performers. And its history (a valid consideration under Reed) shows the state enacted the law after its sponsor tried (only partially successfully) to stop a drag show as a public nuisance. I expect many cases to come out the same way.

When we learned RAV (which at that point was about six years old) in law school, a classmate criticized the case’s principle. A viewpoint-based obscenity prohibition, he argued, was impossible–a law could not, for example, prohibit Democratic obscenity while allowing Republican obscenity because that political focus gives the expression SLAPS value and thus makes it non-obscene. Tennessee (and other) Republicans obsessed with non-sexual drag have shown us how it is possible.

• George Mason invited (apparently without student consultation) Virginia Governor Glenn Youngkin to give its commencement address. Some students objected, based on the policies Youngkin has pursued–including anti-trans and anti-race-in-educationstuff that DeSantis has tried in Florida to greater fanfare. FIRE and others have responded by, unsurprisingly, treating student objections as efforts at censorship. GMU President Gregory Washington echoed the platitudes by saying “‘I don’t believe that we should silence the voices of those with whom we disagree, especially in this forum where there is no imminent threat present as a result of the disagreements.'” Instead, it was important to “giv[e] Youngkin a platform so students can not only hear his perspective, but also so conversations about differences can ensue.”

I think we have reached Peak Preferred First Speaker. Because the only way to understand students as “censors” is if the invited First Speaker has an absolute right to speak and all others bear nothing more than an obligation (legal, moral, ethical, civic) to shut-the-fuck-up and listen.

FIRE and others object to the withdrawal of the invitation. But the objecting students must urge disinvitation as opposed to noninvitation because the university invited Youngkin unilaterally, before students had an opportunity to object. Suppose the university held a plebiscite on whether to invite Youngkin and the students vetoed the choice. I expect that FIRE, President Washington, and others would react the same way–the students are improperly denying the Governor of Virginia a platform to speak. If so, this is not about disinviting–this is about obligating everyone to allow any First Speaker to be invited without objection and to listen to his perspectives. Alternatively, I cannot see a meaningful difference between objecting before or after the invitor (university administration) acts.

Moreover, this case is worse than the Duncan case. One can argue that “civil discourse” compels objectors to listen to the First Speaker and engage him (always politely) during Q&A (I doubt the position because the First Speaker need not engage with any student). But accepting that with Duncan or other open-forum speakers, Youngkin will not do a Q&A at graduation. So students are obligated, in Washington’s words, to sit and hear his (and only his) perspective and maybe”conversations about differences can ensue” at some other undefined moment in time. Because I am sure

The final problem here is that graduation is supposed to celebrate the students and their accomplishments. So the rule is “shut-up-and-listen even if it casts a pall over a significant accomplishment.” Or the rule is “avert your eyes by skipping your graduation.” Either seems to be less about some theory of civil discourse and more about a duty to listen to those with power.

Other projects (especially the work on SB8) have captured my attention for the past 18 months, directing me away from exploring the first-speaker issue. I need to circle back to that project soon.

Posted by Howard Wasserman on April 1, 2023 at 11:56 AM

Mississippi John Hurt released “Richland Woman Blues,” today’s music post at The Faculty Lounge, on his 1963 album Folk Songs and Blues. I don’t know whether he wrote it, or if it is traditional, but it is beautifully simple, especially with Hurt’s gentle voice and his virtuoso cross-picking guitar. Jim Kweskin and the Jug Band covered it as “Richland Woman” in 1966 on See Reverse Side for Title, with Maria Muldaur’s singing and Kweskin and Geoff Muldaur on guitar (it took two of them) in as perfect an arrangement as I have ever heard. The post is here.

Posted by Steve Lubet on April 1, 2023 at 06:09 AM

Comments

The Richland Woman Blues soundtrack is great!

Posted by: house of hazards | May 11, 2023 2:56:44 AM