Author: import

I have a short piece up at SCOTUSblog on the status of the “Lemon Test” and the recent enactments in a few states requiring the display of the Ten Commandments in public-school classrooms. Here is a bit:

Millions of American kids are returning to school this month, and to classrooms decorated with carefully curated displays, images, pictures, and posters. This décor is as much a part of teachers’ plans and aims as textbooks, worksheets, and lesson plans. It is meant to send messages – about history and values, about role models and recycling. Over the past 15 months, legislatures in several states have called for particular additions to the communicative content of classroom walls. Specifically, in Louisiana, and then in Arkansas and Texas, laws have been enacted that mandate displays of the Ten Commandments. A wrinkle, though – a possible bump in the legal road for these messaging moves – is the fact that the Supreme Court, in a 1980 case called Stone v. Graham, struck down just such a requirement in Kentucky, concluding that it violated the First Amendment’s prohibition on establishments of religion because it had “no secular legislative purpose” and “serve[d] no [] educational function.”

Perhaps not surprisingly, then, a federal trial court blocked the Louisiana law, relying on Stone, and in late June a federal appeals court agreed. The Arkansas law was similarly enjoined earlier this month, and legal challenges to the Texas law are pending.

What is going on? Why did these states, in a kind of “blast from the past,” enact a demand that seems so clearly to conflict with settled and familiar court precedent? Answering these questions first takes us back to a 1971 case called Lemon v. Kurtzman and then forward to the court’s closely watched and much anticipated 2022 ruling in Kennedy v. Bremerton School District. . . .

. . . What does it mean for a law’s purpose, or for a law, or for a government action, or indeed for anything, to be “secular”? Sure, the Ten Commandments are “religious,” but they are also displayed in Spanish marble in the “secular” courtroom where the justices sit. The word is often thought to mean “anti-religious,” but that’s not right (even if anti-clericalism and hostility to religious belief and actors often travel with ideological secularism). The Catholic Church has had “secular” priests – that is, priests who do not belong to religious orders – for centuries. If we connect the term to its Latin origins, it simply denotes the things of this world, or age, as opposed to those of the next. Religion, though, is very much a part of this age, even as it concerns also and anticipates, in many cases, the next.

Government action that protects religious freedom relates to religion, and yet it still has a “secular” purpose; in our tradition, legally protected religious liberty is seen as conducive to human flourishing and healthy communities in this world. Government decisions to cooperate with, and to support financially and otherwise, the this-worldly work of religious agencies, schools, and hospitals has a “secular” purpose. Teaching children, even in state schools, what they need to know to intelligently read Augustine and Milton, Lincoln and King, has a “secular” purpose. Does posting the Ten Commandments, in one form or another, on the wall of a state-school classroom? We will find out soon.

Posted by Rick Garnett on August 21, 2025 at 10:46 AM

From the Eleventh Circuit in Burt v. President of University of Florida (appeal untimely when filed more than 30 days after deadline to amend expired)

First Amendment cases often get serious attention, and rightly so. But civil procedure, though perhaps less glamorous, defines the rules of the road.

Posted by Howard Wasserman on August 21, 2025 at 09:50 AM

You don’t really need to read past the headline – “I’m Conservative. My Disabled Son Needs Medicaid to Survive” – but here is the opening paragraph:

I’m a registered Republican who just watched her party spend much of the summer pushing through new cuts to Medicaid. I’m also here to tell you why I’m an unlikely supporter of the program. My son’s life depends on government assistance. Recent cuts to Medicaid at both the federal and state levels mean millions of families like mine could soon be at a loss for how to care for our disabled loved ones.

Rachel Roth Aldhizer tells a very moving story about her profoundly disabled son, and the way Medicare cuts will devastate her family and others like it.

Doctors’ appointments, surgeries, many therapies, adaptive equipment, specialized food, medical supplies, respite care workers (who provide temporary relief to caregivers) and more are all provided for him by Medicaid. I am even paid a living wage to care for my son.

In other words, although unspoken, Aldhizer came to recognize the importance of the social safety net only after she began to depend on it herself. She doesn’t reflect at all on the irony of having repeatedly voted for the Republicans who are responsible for the cuts she fears. She never mentions the Republican policies devastating families in ways other than by cutting Medicare — for example, the revocation of Temporary Protected Status for tens of thousands of refugees who entered the country legally, and who are now facing family-destroying deportation. Only one Republican senator voted against confirming RFK, Jr. as head of HHS, which will eventually deprive millions of children of effective vaccines.

Nor does she acknowledge the repeated Republican attempts to repeal the ACA, led by those for whom she no doubt voted, which would deprive even more Americans of medical care.

She doesn’t even apologize for her past votes.

In that sense, she is a classic Republican, with no awareness of government or public responsibility, advocating only for her own needs.

A friend of mine questioned whether Aldhizer is a “classic” Republican as opposed to a current Republican. I suppose there is a difference. On the other hand, the number of Republicans who voted for the ACA in 2009 was zero. The number who voted for Bill Clinton’s Health Security Act in 1993 was also zero.

About half of Republicans did vote for Medicare in 1965, under Lyndon Johnson, and a majority voted for the Social Security Act in 1935, under FDR. So perhaps that was the classical era – when they were the minority party with a popular Democrat in the White House.

Republicans in power have been a very different story.

Posted by Steve Lubet on August 21, 2025 at 09:25 AM

The Standards Review Committee of the ABA Legal Ed Council wants what it wants. And what it wants is a substantial increase in the experiential learning credits required of law students to graduate. Despite a flurry of comments objecting to this proposal — a few of which were especially powerful in exposing the lack of any serious evidence supporting the case for this major expansion — the Committee has come back with a proposal that largely mirrors what it had previously sent out for comment. As a matter of raw authority, neither the law schools nor the big ABA nor, to get to the point of all this, any external public organization can rein in the Council if it determines that this requirement should go forward.

However, there is a possible obstacle to the Council’s effort to run roughshod over the diverse constituencies who have expressed doubts about the wisdom of this proposal, a proposal that will certainly impose burdens of time and treasure at a moment in which the state of legal education and the legal profession in the U.S. is in serious flux. That obstacle comes from state bar authorities, a few of which have already expressed grave concern with the overbearing character of ABA accreditation — although, to be clear, not necessarily to this proposal. Such authorities could well step in and make crystal clear that law graduates seeking admission to the bar in their states would not be obstructed in their quest by the fact that they graduated from a law school which has not met these new requirements. Reflect on this for a sec. It is well within the discretion of these authorities to undertake on behalf of law graduates what we might call a partial rebellion. That is to say that they might leave the ABA’s accrediting power mostly intact, but decide that law schools may graduate students who are fully qualified for admission to the bar even if these same law schools have provided a curriculum that is not fully standards-compliant. From my perspective, this is not the general situation we should want. I have said in the past that the right pathway is a “mend it, not end it” strategy, with the Section through its Council listening closely to concerns expressed from myriad stakeholders, rethinking some of its more burdensome, and ill-supported standards, and working to adapt its approach in order to provide a 21st century structure that meets the needs of law schools, students, and the profession.

But the experiential learning debacle reveals a Council that defiantly declines to listen to their constituents, including the deans, and is steadfastly unwilling to do the kind of learning and innovating that the times are demanding. In this game of chicken, it is not clear that their authority will survive this latest scuffle. Indeed, it perhaps out not to survive wholly intact. The experiential learning proposal is a really bad idea whose time has not at all come. And it reflects a breathtaking stubbornness on the part of the folks in the room where it happens.

Responding to the Texas Supreme Court’s request for comments on their ongoing process of rethinking the role of the ABA in accrediting law schools in the state of Texas, the dean of the University of Texas Law School, Bobby Chesney, wrote a remarkably thoughtful and far-sighted letter to the court in which he suggested that the court might well think hard and creatively about what a post-ABA accreditation regime would look like. Dean Chesney is careful in not advocating that the ABA’s accreditation role be displaced, but he does note some of the ambient criticisms of the ABA’s unwavering focus on inputs rather than outcomes, including the objections to the experiential learning proposal. He notes wisely how the present turbulence in the legal profession, wrought by changes in technology, the pressing access to justice crisis, and other pressures, ought to cause some ambitious fresh thinking — thinking that may well lead to major change in how this states and others might reform the accreditation system. The trick in accreditation, Chesney writes, “is to carry out this screening without unduly suppressing innovation, imposing unwarranted conformity, or driving up educational costs unnecessarily. Efforts to ensure adequate law school quality, in other words, need to be balanced with appreciation for those risks.” Bluntly noting that the ABA’s current approach might not appreciate adequately these risks, he concludes that “a well-designed alternative pathway should turn on an intentionally-parsimonious set of benchmarks for baseline adequacy, thus leaving maximum room for innovation. If well chosen, those benchmarks might actually be relatively administrable.” And he ends with a truly imaginative nod to a possible future: “[I]t would be fascinating to see what might arise should the Court reopen such a pathway given the current climate of innovation, change, and cost concerns.”

Fascinating indeed. Through its defiance, the ABA Council has, in its ham-handed handling of the experiential learning requirement, perhaps pushed the door open to this possible future — and not merely in the great state of Texas

Posted by Dan Rodriguez on August 20, 2025 at 05:32 PM

Comments

The problem with appealing to state bars is: “asking students to have more practical experience” sounds like the sort of thing that non-professors would be more likely than not to support.

Posted by: Michael Evan Lewyn | Aug 29, 2025 12:50:23 PM

Although it bears a close resemblance to statements made by a number of currently serving officials in the United States executive branch, you can tell this quote is not from one of them because of its clarity and elegance. The quote comes, of course, from Lavrentiy Beria.

The occasion is this story in the Wall Street Journal, for whose daily reporting we should be profoundly grateful. The story details Trump’s demand that “a Biden-appointed Federal Reserve governor [ ] resign after one of his housing officials accused her of mortgage fraud.” The relevant details demonstrate both the typical rush to judgment and–I would say more uniquely, rushes to judgment hardly being an innovation of the current regime–the extent to which the second Trump regime, not by way of secondary communications but as a matter of its primary functioning, lives in, on, and through the unspeakable vulgarity and thoughtlessness of social media:

Bill Pulte, the head of the Federal Housing Finance Agency, alleged on social media Wednesday morning that Fed governor Lisa Cook submitted what he called fraudulent information on a pair of mortgage applications.

Trump wrote in a social media post in response to Pulte’s claims that “Cook must resign, now!!!”

Needless to say, I have no brief for this official, of whom I’ve never heard, and no view on whether or in what manner she erred or lied. It is unfortunate that, as with Erika McEntarfer and the BLS and (to a lesser extent) the goal-less push toward the federalization and militarization of law enforcement, the online discussion will end up focusing on the merits of the charge, with newly minted prosecutors and defense attorneys (including actual practicing lawyers) debating law and facts they were previously unaware of and do not presently understand. No doubt a debate is to be had, and if social media is good for anything, it’s for presenting the simulacrum of passionate debate.

But all that is mostly irrelevant. Cook’s real crime–obviously–is existing and holding office in a manner inconvenient to Donald Trump. The charge of being in Trump’s way is so frequently levied by the executive branch these days that Congress, if it were still in the business of passing laws that direct or delimit the execution of the law by its coordinate branch, might as well make it official.

What the story does not detail but is transparent from its very existence is its genesis, and the nature of this regime’s attitude toward law, administration and management, and political “enemies.” Pulte, clearly seeking the president’s attention and approval in the kind of court politics that characterize personalist authoritarian government, has been the regime’s designated or self-appointed anti-Fed voice. Per the WSJ: “From Pulte’s seat at the head of the FHFA—an agency that usually has little to do with the Fed—he has helped lead the White House’s charge against the central bank, lambasting Fed Chair Jerome Powell on social media and in television interviews.”

Since documents don’t leap from the ether into his lap, presumably he has instructed his underlings to drop their other duties and dig through the dumpsters until they find usable misconduct. One imagines that whole seconds of careful double-checking elapsed before Pulte took to social media with the charges. One assumes that we will learn over time that vast stretches of the executive branch have been told to drop important existing duties and instructed to comb through enemies lists. This gross misdirection of resources will only become more prevalent as the executive branch demands and secures access to panoptic information about Cook–and about you, and everyone you know. And one assumes the same pretextual “investigation”–the search not so much for law violations as for levers–will be employed whenever the regime wants to sideline an official, deport a permanent resident, or strip an American of citizenship.

The leap from “assumes” to fact is, in this case, less of a leap and more a matter of millimeters. The most important and exemplary speech thus far in the second Trump regime remains his obscenity at Main Justice in March. His foreign policy speech in Riyadh doesn’t come close. That’s partly because he has no foreign policy himself, beyond the desire to spend time with and cave to strongmen, and partly because any more meaningful foreign and national security policy will be decided through court politics, as part of the non-transparent internecine conflict and collaboration among leading regime officials and quasi-acting presidents Vance, Rubio, Hegseth, and Loomer. But mostly it’s because there is no formal statement of foreign (or economic) policy that the regime won’t contradict, violate, and undermine as it sees fit.

Trump’s speech at Main Justice, on the other hand, is the Trumpian id defined and unleashed, and no one at Justice has the slightest desire or capacity to leash or even temper it. It is the sole train in the entire regime, outside of whatever Russell Vought is up to, that might manage to run on track and on time. In this regime, in law enforcement as with economic policy, if you can imagine it, and if you then imagine a parodic, shambolic version of it, you’re likely right on the money. See, for example, this update from the Times on Ed Martin–the jackass with the shape of a man and the soul of a second-tier functionary in Maduro’s Bolivarian National Intelligence Service. (At least, the soul of a Venezuelan internal security officer who wears a trenchcoat and brings the New York Post along when cosplaying as an investigator.) Martin’s one gift to the world is to embody the fact that the fearful assumptions about this regime are usually the reality.

The seeming rapidity and informality with which Pulte made his accusation, however much staff time and clandestine record-skimming went into it, and the speed and equal informality with which Trump greeted it, are indicative of two other characteristics of this regime’s attitude toward one of its two central law enforcement policies. (Deportation holds an equal place with the intimidation and punishment of enemies.) The first, which again is worth noting as often as is needed to make it its own subject and not a dully accepted afterthought, is the extent to which this is a vulgarly imagocratic regime, albeit one with teeth: one that conducts an enormous amount of its official business through social media, with all the viciousness, vacuousness, and speed that this entails. As someone with a conservative disposition, I will never stop believing that the vulgarity, informality, and breakneck speed of the regime-qua-social-media-account manner of operation of this executive branch are their own subject, one that demands examination and condemnation, especially by the remnant of American conservatives.

The second is the extent to which the regime has centralized a form of “pig-fucker politics.” Sometimes the allegations are true, sometimes they’re false, often they’re wildly inaccurate or misleading. But if they’re directed at an enemy, forcing them onto the defensive and rallying the base, then they’re A-OK. This is the essence of Trumpian law enforcement. (If the criticisms are aimed at the president, on the other hand, then whether true or not they’re presumptively criminal and unpatriotic.) The accusation is all.

Or almost all. The default Trump apologist position, as with responses to the social-media vulgarization of the entire executive branch, is to casually accept it as mere grandstanding, “trolling,” and so on, in the same way that one grows used to a stench if one stands in a sewer long enough. And it’s true that it’s difficult to make charges stick when the law is against you and you’ve driven out most of your competent lawyers. I don’t accept that position–both because the regime, or at least its leader and his most servile or enthusiastic lackeys, would love to make some charges stick, and because a regime that cosplays at authoritarianism on social media should be treated by decent people as being exactly what it says it is. (The vulgar label, by the way, derives from Lyndon Johnson, whose vulgarity was once viewed as nonpareil but who now does not compare to the smallest cornice that Trump has heaped with gold leaf in his quest to turn 1600 Pennsylvania Avenue into an Atlantic City whorehouse.)

Again, I have no brief for this particular Fed official. I have no position on what she has or hasn’t done, let alone how it compares to the crimes and criminals the administration isn’t interested in. Laws should be applied sanely, fairly, and even-handedly, but, as the saying goes, almost no one is above them. Nor, to be sure, do I absolve prior administrations. But I am reminded for the thousandth time since January that there are actual human beings out there, some with law degrees, who argued with straight faces that the goal of this regime would be to end “lawfare,” a fatuous term that will nevertheless serve here. And I am reminded for the thousand and first time that, as those people and everyone else knew, the goal of this regime is to pursue nothing but “lawfare.”

When the Justice Department, its eye firmly fixed in a “Yes, I said it” wink and its face set in a juvenile smirk, establishes a “Weaponization Working Group,” even as the rest of the government’s foreign and domestic policy operations are converted into a pay-for-play scheme and protection racket, the cynicism of the lie about “ending” warfare–a lie at the time, and a damnable repeated lie for as long as it is left un-recanted–is laid even barer. One stops thinking of the oft-used quote–“For my friends, everything; for my enemies, the law”–as an exaggeration or warning and starts thinking of it as the state of the union. One wonders how to define a regime that has in its ranks not only no liberals, in any large- or small-l sense of the word, but also, and perhaps more alarmingly, no conservatives. One stops thinking of this as a republic and starts thinking of it as a banana republic that can’t afford bananas.

Debating Cook’s conduct–investigating it, defending it, berating it–is silly. So is labeling it “politics” as if this were either an excuse or the entirety of the matter. There is gross misconduct here that demands discussion. It’s not Cook’s.

Posted by Paul Horwitz on August 20, 2025 at 01:11 PM

I have been fiddling around with various AI ChatBots, comparing them for reliability on searches where I already know the answer. It probably won’t surprise anyone that Elon Musk’s Grok provided the worst results.

Following up my recent column for The Hill, I asked for “the relationship between Judge Edward Loring and Benjamin Robbins Curtis.” Here is Grok’s response, in relevant part:

Edward Greely Loring was a Massachusetts judge and U.S. Commissioner who presided over the Anthony Burns case under the Fugitive Slave Act of 1850. Benjamin Robbins Curtis, at the time a prominent lawyer and later an Associate Justice of the U.S. Supreme Court (1851–1857), was one of the attorneys who represented Burns in an attempt to secure his freedom. In summary, Edward Loring and Benjamin Robbins Curtis were professional adversaries in the Anthony Burns case, with Loring acting as the presiding commissioner who enforced the Fugitive Slave Act and Curtis serving as a defense attorney opposing Burns’ return to slavery.

This could not be more wrong regarding Curtis, who was a proponent of the Fugitive Slave Act and led a rally supporting the statute. He played no role in the Anthony Burns trial, but he certainly would not have represented Burns seeking to secure his freedom. In fact, he supported Burns’s return to enslavement. (Curtis was a complicated guy. On the Supreme Court, he dissented from Dred Scott and soon resigned in disgust.) Also, Loring and Curtis were distant cousins of a sort, which Grok completely missed.

I also asked how many times my book The Trials of Rasmea Odeh had been reviewed. Grok hallucinated these three citations, none of which actually exist:

Kirkus Reviews: A review published by Kirkus Reviews describes the book as a “well-documented, shocking, and politically freighted story of a miscarriage of justice.” Kirkus did not review the book, alas, which is obvious because it is not about a justified outcome, and certainly not a “miscarriage of justice.” Publishers Weekly: Publishers Weekly provided a review that highlights the book’s examination of Rasmea Odeh’s case, emphasizing Lubet’s meticulous research and narrative skill in detailing her journey from a Palestinian militant to a U.S. citizen and her subsequent legal battles. This is a more accurate description of the book, but it couldn’t have come from Publishers Weekly, which, I am disappointed to say, never reviewed it. Law & Society Review: A review by Darryl Li in the Law & Society Review (Volume 56, Issue 4, December 2022) offers a detailed academic critique of the book. Li discusses Lubet’s approach to the legal and political dimensions of Odeh’s case, noting its significance in understanding immigration law and political activism. This review is available through academic databases like Cambridge University Press. Note the invented details, including the name of the reviewer and the date of the issue. Darryl Li is an anthropologist at the University of Chicago, who works in the areas of law and migration, and currents in the Middle East. I would have loved a review from him in Law & Society, but it never happened. Two other ChatBots — Perplexity and ChatGPT — got their questions right.

Now, I already knew the answers to my questions on, but it seems unlikely that another user seeking similar information — a student or a young lawyer — would even know how to check for errors.

Posted by Steve Lubet on August 19, 2025 at 09:05 AM

The decision of the Council on Legal Education on new experiential learning requirements for law schools, summarized here, is just more evidence that the ABA’s accreditation role should be curtailed or eliminated. I’ve been a legal educator for nearly 25 years. I can’t think of any positive contribution by that organization in this field. Though, as President Eisenhower once said of the contributions of his Vice-President, “If you give me a week, I might think of one.”

Posted by Gerard Magliocca on August 19, 2025 at 07:16 AM

Recent planning for Constitution Day leads me to conclude that we really need a Constitution Week. Everybody wants to schedule their event for Constitution Day. This makes it harder to get speakers and harder to attend the events. Far better would be Constitution Week to spread these events out.

If sharks can get a whole week, so can the Constitution.

Posted by Gerard Magliocca on August 18, 2025 at 03:07 PM

My new column for The Hill asks how much longer decent people can keep working for Robert F. Kennedy’s Department of Health and Human Services, while the boss continues to undermine medical research and destabilize science. A tragic story from the 1850s, about a federal commissioner under the Fugitive Slave Act, provides a cautionary lesson. Here is the gist:

Credible scientists can’t hold up Kennedy’s charade for much longer

How much longer can responsible people work for President Trump’s Department of Health and Human Services under the leadership of Secretary Robert F. Kennedy Jr.?

That question arises every time Kennedy pulls funding for vaccine research or purges respected scientists.

There is no single answer to whether an official should stay or withdraw from a compromising position, but history does provide cautionary tales.

[In 1854], a fugitive from slavery named Anthony Burns, was arrested in Boston and brought before [Judge Edward] Loring, a federal commissioner under the Fugitive Slave Act of 1850.

“It is said that the statute is so cruel and wicked that it should not be executed by good men,” [Loring] wrote. But [if] humane judges were all to resign, “then into what hands should its administration fall? Will those who call the statute merciless commit it to a merciless judge?”

Despite his protestations, Loring ruled in favor of the slaveholder, holding that it was required under the law. He sent Burns to Virginia in chains.

Loring is remembered today, if at all, as an enabler of slavery.

Perhaps health officials are currently echoing Loring’s lament. “If I resign, someone very bad will take my place.” But sometimes, complicity is complicity.

You can read the full essay at The Hill, including much more about Judge Loring’s rationalization for enforcing the Fugitive Slave Act.

Posted by Steve Lubet on August 18, 2025 at 12:04 PM

SCOTUS next term will decide First Choice Women’s Resource Center v. Platkin, on whether the target of a civil investigative subpoena can challenge the subpoena in federal court or whether it must ignore the subpoena and defend in a proceeding to enforce that subpoena. The case involves New Jersey seeking information from a crisis pregnancy center. The usual suspects to view the case through pure partisanship–the petitioner will win because of course the Court will support anti-choice activists.

That reaction surprised me, given the obvious potential for cases with the opposite political valence–Red States or a Republican administration pursuing liberal speakers. Case-in-point: The D.D.C. enjoined the FTC from pursuing a broad CID targeting Media Matters‘ purported role in an advertising boycott of Twitter.

I know the likely (facile) response–the Court will find a way to protect First Choice but not Media Matters. But that sort of nihilism is undisproveable and thus impossible to engage with. At the very least, I am not inclined to view First Choice as a politically motivated bad omen, to the extent it establishes cross-ideological free-speech protections.

Posted by Howard Wasserman on August 16, 2025 at 03:34 PM

The son of former enslaved people, John Smith Hurt was born in Teoc, Mississippi,

“‘Right in Theory, Wrong in Practice,'” is now out in the new issue of the Journal of American Constitutional History.

Posted by Gerard Magliocca on August 15, 2025 at 08:03 PM