Author: import

In times past, popular music often extolled the joys and lamented the heartbreaks delivered by mail. Letters were the main form of communication between separated lovers; telephone and telegraph were seldom available alternatives. In the digital age, of course, love letters (and breakup letters) have become a lost art form. If there are songs about romantic texting or IMs, I haven’t heard of them. Fortunately, the emotional impact of epistolary romance can still be found the songs posted today at The Faculty Lounge.

Posted by Steve Lubet on September 6, 2025 at 06:29 AM

The assault on universities claims its latest victim–Northwestern President Michael Schill, the Jewish President who apparently oversaw rampant antisemitic discrimination at his university. Schill ran into unique problems because Northwestern was one of the first schools to bargain with protesters (promising a meeting with the endowment committee–whose outcome was a foregone conclusion–in exchange for ending the encampment).

Northwestern has lost $ 790 million in research grants and has been cutting spending in places to try to cover the losses. I do not know if this is a first step towards surrender (i.e, Schill knows what the Board wants to do and does not want to be part of it) or something else. After the Harvard decision, schools must be willing to fight, knowing they have at least strong Title VI and First Amendment arguments and that litigation is worth the effort.

Schill mentions academic freedom and free expression several times in the letter. This could be a) a defense of his efforts as president in riding the line between free speech and order; b) a way to urge university to hold the line; or c) a dig at the university’s planned surrender. Or maybe a bit of everything.

The full text of the letter after the jump.

Dear members of the Northwestern community, Over the past three years, it has been my profound honor to serve as President of Northwestern University. In that time, our community has made significant progress while simultaneously facing extraordinary challenges. Together, we have made decisions that strengthened the institution and helped safeguard its future. In so many ways, Northwestern is on a stronger footing. We have advanced superb teaching and research, reinforced our commitment to academic integrity and free expression, secured record levels of research funding and philanthropy, enacted extensive reforms to protect student-athlete welfare, and launched groundbreaking initiatives — most notably our work to integrate AI across disciplines, the long-awaited construction of a new home for the social sciences and global affairs, and the creation of the Litowitz Center for Enlightened Disagreement. Applications to the University and our national rankings have reached historic highs, and our faculty’s research continues to advance health, knowledge, artistic, and societal progress. These achievements reflect the collective brilliance and devotion of many. At the same time, from the very beginning of my tenure, Northwestern faced serious and often painful challenges. In the face of those challenges and the hard, but necessary choices that were before us, I was always guided by enduring values of our University: protecting students, fostering academic excellence, and defending faculty, academic freedom, due process and the integrity of the institution. I also recognize that difficult problems remain, particularly at the federal level. It is critical that we continue to protect the University’s research mission and excellence while preserving academic freedom, integrity, and independence. As I reflect on the progress we have made and what lies ahead, I believe now is the right time for new leadership to guide Northwestern into its next chapter. Therefore, I have decided, in consultation with the leadership of the Board of Trustees, that I will step down as President. I will remain in my role until an interim president is in place, and I will assist in his or her transition. After a sabbatical, I will return to Northwestern Pritzker School of Law to teach and conduct research, my first and enduring passion. To me, the highest honor a person could have is being a member of our faculty and I look forward to nurturing our students and continuing to champion higher education, a cornerstone of American society that, despite its imperfections, is more important than ever to our nation’s future. It has been my privilege to work alongside extraordinary colleagues and to witness firsthand the resilience, generosity, and strength of the Northwestern community. I would like to thank my extraordinary administrative team who work tirelessly to further the interests of the University, our deans and academic leadership who promote the highest ideals of academic excellence, the faculty and staff who make Northwestern one of the greatest academic institutions in the world, and the many Board members and alumni and donors who care so much about our University. And, lastly, I appreciate our students, who I am confident will go on to change the world for the better. Michael H. Schill President Professor of Law Professor of Finance & Real Estate

Posted by Howard Wasserman on September 4, 2025 at 03:15 PM

His dissenting opinion in the Alien Enemies Act case might as well have started: “Dear President Trump,”

Posted by Gerard Magliocca on September 4, 2025 at 03:12 PM

The Alabama Civil Rights and Civil Liberties Law Review is proud to announce its symposium The Ever-evolving Definition of America’s History and Tradition to be hosted on February 6, 2026, at The University of Alabama School of Law. This symposium will examine the Roberts Court’s growing reliance on historical analysis, reflecting a shift towards originalism that has reshaped the Court’s interpretation of civil rights and liberties. Our Keynote Speaker Deborah Archer, along with our panelists, will discuss the past, present, and future landscape of fundamental rights through the lens of the Supreme Court’s “history and tradition” test. We are currently seeking panelists, who are also willing to commit as contributing authors, for the following panels:

• The Expansion of Executive Power – This panel will assess the expansion of executive power in the context of the First Amendment. Specifically, potential panelists should be able to communicate the effects of such power on administrative agencies, educational institutions, and/or private legal entities.
• Countermovements and the Supreme Court: From Resistance to Tradition – This panel will focus on how the Supreme Court can account for differences in history and tradition, with a specific emphasis on countermovements like the Civil Rights Movement and the Second Founding. Ideal panelists will be able to discuss the experiences of marginalized communities that may not typically be recognized in America’s history and tradition.

Please direct all statements of interest and inquiries to [email protected]. Alabama Civil Rights and Civil Liberties Law Review

Posted by Paul Horwitz on September 4, 2025 at 09:58 AM

As I mentioned, I have posted Constitutional Litigation After Trump v. CASA on SSRN. It now floats in the law-review-submission ether. Abstract after the jump.

Abstract

Trump v. CASA resolved a decade-old scholarly debate about whether federal courts can grant “universal” injunctions in constitutional cases-injunctions prohibiting the executive from enforcing the challenged law to all persons subject to the law, beyond the plaintiffs to the action. A 6-3 Court said federal courts could issue remedies necessary to accord “complete relief to the plaintiffs,” without the power to protect non-parties. The various opinions in CASA offer competing visions of litigation, adjudication, and judicial decisionmaking. The case plays and will continue to play an essential role in ongoing challenges to E.O. 14160, other challenges to Trump Administration policies and regulations, and all constitutional litigation.

This essay explores four issues of constitutional litigation and adjudication that CASA explains, undermines, alters, or strengthens. First, the Court adopts the appropriate label for these overbroad injunctions-universal; this extends the scope issue to encompass challenges to federal and state law. Second, the Court divided over competing models of the judicial role and power, with the majority settling on a form of “Supreme Court Supremacy,” in which the Supreme Court (but not lower courts) establishes constitutional law for all. Third, the Court identified four paths through which plaintiffs may achieve broader relief, without courts issuing universal injunctions. Finally, complaints about the Court using this case to resolve the simmering debate over universal injunctions reveal and resolve important issues about constitutional litigation and about the scope-of-injunction controversy.

Posted by Howard Wasserman on September 4, 2025 at 09:31 AM

The District of Massachusetts granted Harvard and its AAUP Chapter summary judgment on several claims, ruling that the cancellation of various grants violated Title VI and the First Amendment. The opinion is 84 pages and I probably will not get to it tomorrow.

I will flag one thing for now: The court drops a footnote about the confusion and difficulty in complying with the various shadow-docket orders about the proper court for claims challenging grant terminations. He ends the footnote with this:

Given this, however, the Court respectfully submits that it is unhelpful and unnecessary to criticize district courts for “defy[ing]” the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.

Earlier today I wrote a small piece of a new article (Law Reviews: Coming soon to a submission box near you) on how the Court’s adoption of “Supreme Court Supremacy” in CASA combines with comments such as Gorsuch’s in APHA to enable and support the Administration’s attacks on lower courts. This footnote is of a piece with U.S. v. Russell, which rejected a suit challenging a standing order in the District of Maryland. The judge listed the various insults administration officials have hurled at district judges, calling the “concerted effort by the Executive to smear and impugn individual judges who rule against it . . . both unprecedented and unfortunate.” So the Supreme Court and the executive are attacking lower courts, each enabling the other’s attacks.

Update: Some lower-court judges spoke anonymously to NBC News to criticize the Court’s handling of emergency orders, which contributes to the appearance that lower courts do bad work and are simply biased against Trump.

Posted by Howard Wasserman on September 3, 2025 at 06:13 PM

The Eleventh Circuit affirmed the grant of summary judgment for CNN in Alan Dershowitz’s defamation action over how CNN reported on his defense of Donald Trump during the first impeachment. The record did not allow a reasonable jury to find, certainly not by clear-and-convincing evidence, that the reporters spoke with actual malice–rather, the “evidence points to the reporters’ sincere—if mistaken or even overwrought—belief in the truth of their accusations.”

It seems to me this should have been resolved on opinion. The statements at issue (reproduced in the opinion) characterize Dershowitz’s statements and suggest the negative consequences that would flow from his positions. These are not the falsifiable statements of fact that form the basis for defamation liability. The court therefore need not have reached actual malice.

Here is why that matters: Judge Lagoa wrote a concurring opinion to “explain my view of the harm Sullivan has caused in our First Amendment jurisprudence” and offer a lengthy non-historian’s historical analysis of defamation law and why Sullivan is inconsistent with the original understanding. Judge Wilson concurred to offer a stare decisis argument for retaining Sullivan, including that it was rightly decided as a matter of the purposes and evolution of the First Amendment, as well as whatever ambiguous history we have. He closes by urging lower-court judges to stop calling for SCOTUS to overrule the case, as it undermines stability in the law.

Dershowitz will seek cert [Update: I wrote that as a prediction; CNN reports that Dershowitz plans to ask SCOTUS to overrule Sullivan). Could this be the case the Court uses to address the issue? What will Roberts, Kavanaugh, and Barrett do with this? And does the fact that this should be an opinion case make it the wrong vehicle (a la Coral Ridge Ministries, Thomas’s latest missive on Sullivan, which neither opinion cites).

Posted by Howard Wasserman on September 3, 2025 at 02:35 PM

Joey Fishkin has a lengthy Balkinization post about the protests at UCLA and the way the story of the “Jew Exclusion Zone”–the basis for a private lawsuit (by the Becket Fund) and $ 6m settlement and the latest Trump attack–was false, fabricated by non-UCLA students (seemingly adults) looking for a way to break protests presenting a message they did not like. Worth a read.

UCLA is unique because the controversy went beyond value disagreements (“the university is not doing enough to stop antisemitism”), here we have a testable factual proposition (“the protest actively prevented Jews from entering a certain space”). But the absence of a trial may mean that factual proposition will never be tested.

Posted by Howard Wasserman on September 3, 2025 at 11:37 AM

A transformer on the property next to us has blown three times in the past month, including yesterday morning. I received text updates from the company during the day, including this one: “Restoration specialist is in the area working to restore the power.”

Disappointed in the name change, I thought of this. And decided to preempt Steve on this song.

Freedy Johnston’s version from an early-’90s album should be definitive:

REM:

Glen Campbell is most associated with the song:

Jimmy Webb wrote the song:

Webb and Campbell:

James Taylor:

Ray Charles:

The Dells:

Midland (at Red Rocks):

Sergio Mendes and Brasil ’66:

Posted by Howard Wasserman on September 3, 2025 at 08:50 AM

You can find the entire statement here. Here’s the money quote:

“The bill is largely procedural. It places additional constraints on use of the President’s emergency economic powers in future national emergencies . . .”

This hardly sounds like a grant of executive authority to set tariffs on every country in the world at any time and at any level. Which is why nobody thought that might be the case until this year.

Posted by Gerard Magliocca on September 2, 2025 at 12:17 PM

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal courts or federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2026 AALS Annual Meeting. The purpose of the award program is to recognize outstanding scholarship in the field of Federal Courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2025 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of October 1, 2025), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to this year’s Section Chair, Professor Richard Re ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2025. Nominations will be reviewed by a prize committee comprised of Professors Elizabeth Earle Beske (American), Seth Davis (Berkeley), Allison Orr Larsen (William & Mary), Richard Re (Harvard), and Fred Smith (Stanford), with the result announced at the Federal Courts Section program at the 2026 AALS Annual Meeting.

Posted by Administrators on September 2, 2025 at 09:31 AM

Trump’s Executive Order attempting to abolish cashless bail is unjust and inhumane, but what else is new? I explain it in my new column for The Hill. Here is the gist:

Cashless bail is effective and humane, but Trump wants to end it

by Steven Lubet, opinion contributor – 09/02/25

President Trump wants poor people to stay in jail when they are arrested, while still presumed innocent, even if it takes months or years before their cases come to trial.

He didn’t exactly put it that way, of course. But that would be the inevitable consequence of his campaign against cashless bail.

In fact, jurisdictions with cashless bail, more accurately called “personal recognizance,” have no-show rates essentially the same as those requiring cash bail.

After eliminating money bail, Illinois’ no-show rate actually fell from 17 percent to 15 percent. Nor has there been an increase in crime, which continued to drop in Chicago.

In Washington, D.C., which has operated under a mostly non-monetary release system since 1992, about 11 percent of defendants miss court dates, which is consistent with the national rate for federal courts that set cash bail.

As always with Trump, there are serious legal and constitutional problems when he attempts to expand his personal power.

So Trump is wrong on the facts and wrong on the law. But put that aside for now, and consider the very good reasons for eliminating cash bail, making it easier for defendants to secure pretrial release.

You can read the full essay at The Hill, including a personal experience with exorbitant bail from the 1970s.

Posted by Steve Lubet on September 2, 2025 at 08:54 AM