Category: Uncategorized

Thumbs-up! How often do you see a movie about a product liability trial with two Harvard-trained lawyers and a Senate hearing led by Chairman Fudd?

Need I say more?

We don’t know the answer, of course. But the odds are that the answer is yes if the question is whether partisan mid-cycle redistricting can actually change who controls the House of Representatives or has a working majority there.

In the end, that ineffectiveness will probably be a stronger deterrent to that behavior in the future than denouncing it as wrong. Moral or ethical claims don’t seem to have much purchase nowadays.

Cooper v. Aaron offered a gratutious paean to judicial supremacy, one unnecessary to resolve the case at hand (whether Arkansas official could delay implementing a court order compelling desegregation of Little Rock schools). The District of Maryland makes the same gratuitous move in enjoining enforcement of Trump’s new anti-birthright citizenship E.O. On p.26, Judge Boardman writes:

The Supreme Court has spoken: Children in the certified class are “citizens at birth.” Barbara, 146 S. Ct. at 2450. Barbara is the law of the land. The President must follow it. See Marbury v. Madison, 5 U.S. 137, 178 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

As in Cooper, this is wrong. As in Cooper, it is unnecessary to this case, other than as a shot at an admittedly recalcitrant President (much as Cooper took shots at recalcitrant Southern officials).

The President must follow Barbara as to the parties (a large, nationwide class) in Barbara. But that is not at issue in the distinct case of CASA. The President also must follow an existing order in CASA as to the parties in CASA, because the district court followed Barbara and entered a distinct injunction prohibiting enforcement against a distinct large class. Everyone agrees the President must obey binding judgments, including the one it previously entered. As in Cooper, the court did not need to drag Marbury into this.

Moreover, this is not the departmentalist case Justice Jackson and others fear: The President, having been enjoined from enforcing the 2025 E.O. against X, attempts to enforce the 2025 E.O. against Y, forcing Y to bear the cost and burden of litigation to protect her rights. (Again, by certifying classes and entering classwide injunctions in CASA and Barbara, the district courts protected all targets of the 2025 E.O., leaving no one against whom the President could enforce).

Instead, this case involves the President attempting to issue and enforce a new E.O., issued in the wake of Barbara, which he (presumably) believes is consistent with the Fourteenth Amendment as interpreted in Barbara. (It is not for the most part, as Ilya Somin and others argue and as the district court held). But even where the President intends to follow judicial precedent (even for practical reasons of avoiding another judicial loss), he must have the leeway and discretion to pursue different laws and policies and to test the metes-and-bounds of that judicial precedent. If the new policy effort does not satisfy that judicial precedent, the district court can say so. But suggesting that the President fails to follow Barbara by testing its scope disregards the lawmaking process and how lawmaking should function. Even in a judicial supremacist world, the judiciary’s final word cannot extend this far.

Note that this is non-partisan. President Trump, the Court having declared invalid his initial broad anti-birthright-citizenship E.O., can attempt a scaled-back effort to limit birthright citizenship and see what the courts do. Similarly, President Biden, the Court having declared invalid his attempt to forgive student loans under one law, could attempt a smaller effort under a different law and see what the courts do (they declared the second effort invalid). But any President must have room to try.

The new Courts Law essay comes from Sergio Campos (BC), reviewing Suzanne Chiodo, Gerard Kennedy, & Alyssa King, Hyrniak‘s Erosion: Summary Judgment in Ontario.

I have nothing to add.

The Chief Justice’s dissent from the White House ballroom decision ends with a quote from Churchill that I recognize from an article that I published in 2020.

When Churchill said: “We shape our buildings, and afterwards our buildings shape us,” he was arguing that the House of Commons chamber should be rebuilt as it was before Nazi bombs destroyed it. Churchill liked the small rectangular shape of the chamber rather than the large semicircle of, say, the House of Representatives. And he had interesting ideas about why the intimate, face-to-face design was better. Anyway, just some context.

FIU College of Law is hiring for 2-3 pre-tenure positions. We seek candidates in Criminal Law; Criminal Procedure; Evidence; Wills & Trusts; Family Law; Tax; and Business Organizations, as well as coverage in foundation courses.

Qualified candidates are encouraged to send a CV, cover letter, and provide names and contact information for at least 3 references to Committee Chair Howard Wasserman at lawprohiring@fiu.edu. Please also submit an online application at careers.fiu.edu, Job ID 538098. Applications will be accepted until position is filled. For inquiries, please contact the Chair of the Search & Screen Committee, Howard Wasserman (howard.wasserman@fiu.edu).

Full advertisement here.

I’ve taught Barnette many times, but when I taught it this week I noticed something new. The Court at one point says the following:

It was said that the flag salute controversy confronted the Court with”the problem which Lincoln cast in memorable dilemma: ‘Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?’, and that the answer must be in favor of strength. Minersville School District v. Gobitis, supra, at 310 U. S. 596.”

It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the State to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority, and would require us to override every liberty thought to weaken or delay execution of their policies.

Why “Mr. Lincoln”? Shouldn’t it be “President Lincoln” or “Abraham Lincoln”? It would be odd if a current opinion referred to “Mr. Trump.”

My hypothesis is that “Mr. Lincoln” was an allusion to “Young Mr. Lincoln,” a popular movie from 1939 starring Henry Fonda. Barnette was intended for a wider audience than a typical opinion given the subject matter, the war, and the Court’s decision to issue the ruling on Flag Day to maximize publicity. A movie reference fits that template, though I don’t know if Justice Robert Jackson liked movies or that particular movie.

UPDATE: Cutting against my hypothesis is that Myers also refers to “Mr. Lincoln.” As far as I can see, though, no Supreme Court opinion since Barnette uses “Mr. Lincoln” to mean President Lincoln or Abraham Lincoln.

I’m thinking about whether there is a second article in my Birch Bayh research. One issue that merits some exploration is the relationship between the ERA and abortion rights. A common criticism of the ERA was that it would make abortion a constitutional right. After Roe, why didn’t that argument become moot?

I’m not sure, but some of the anti-ERA and anti-abortion commentary at the time was that the ERA would provide a textual basis for abortion rights that was lacking in Roe. This explanation is interesting because it suggests an awareness of the distinction between textual and unenumerated rights.

Another thought is that voting for the ERA was tantamount to voting for Roe. That’s also interesting, in that it may explain why state legislative support for the ERA fell sharply after Roe was decided.

Best Untenured Article Award

The AALS Section on Federal Courts is pleased to announce the annual award for the best federal courts article 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 2027 AALS Annual Meeting.

This Award recognizes 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, 2026 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of October 1, 2026), 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 the Section Chair, Professor Fred Smith of Stanford Law School, at fsmith@law.stanford.edu with the subject line “Best Untenured Article Award – Nomination: [Nominee’s Name].” Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2026.

Nominations will be reviewed by a prize committee consisting of Fred Smith (Stanford, Section Chair), Katherine Mims Crocker (Cornell, Section Chair-Elect), Will Baude (Chicago), Monica Haymond (Northwestern), and Caprice Roberts (LSU). The result will be announced at the Federal Courts Section program at the 2027 AALS Annual Meeting.

Daniel J. Meltzer Award

The AALS Section on Federal Courts is pleased to announce that it is seeking nominations for the 2027 Daniel J. Meltzer Award, which is designed to honor the life and work of the late Professor Meltzer.

This Award recognizes a professor of Federal Courts who has exemplified over the course of their career Professor Meltzer’s excellence in teaching, careful and ground-breaking scholarship, engagement in issues of public importance, generosity as a colleague, and overall contribution to the field of Federal Courts. Eligible nominees are those who are full-time faculty members at AALS member or affiliate schools and have not served as an officer of the Federal Courts Section in the two previous years. It is not required that the award be given out in any particular year, and it may not be given out more frequently than every three years.

Nominations (and questions about the award) should be directed to the Section Chair, Professor Fred Smith of Stanford Law School, at fsmith@law.stanford.edu with the subject line “Meltzer Award – Nomination: [Nominee’s Name].” Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2026.

Nominations will be reviewed by a prize committee consisting of Fred Smith (Stanford, Section Chair), Katherine Mims Crocker (Cornell, Section Chair-Elect), Jack Goldsmith (Harvard), Vicki Jackson (Harvard), and Judith Resnik (Yale). If the committee decides to make the award, it will be announced at the Federal Courts Section program at the 2027 AALS Annual Meeting.

Posted at the request of Roger Michalski (Oklahoma!)

We are excited to announce that the Third Conflict of Laws Annual Workshop (CLAW3) will be hosted by the University of Pennsylvania Carey Law School on Friday, November 13, 2026 with a welcome dinner the night before. The CLAW aims to provide a forum to discuss new work in conflict of laws. The CLAW welcomes work on all aspects of conflict of laws, including civil, criminal, domestic and transnational conflict of laws. We welcome all those writing and working in the field of conflict of laws to attend.
 
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Call for Papers
 
Those wishing to present a paper for discussion should submit a one-page abstract by September 18. Please email abstracts in Word or PDF format to roger.michalski@ou.edu, asimowitz@willamette.edu, and krooseve@law.upenn.edu.
 
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Logistics
 
The CLAW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.
 
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Please do not hesitate to contact us if you have any questions. 

By Judge Jacqueline Becerra (S.D. Fla.).

I have written about the case a few times–seven students from a campus group called ICEBreakers silently revealed “ICE OFF FIU” t-shirts during an event in which the university president interviewed Alex Rodriguez (don’t ask). They were sanctioned under a university regulation prohibiting indoor protest activity. A university hearing imposed a reprimand and required students to submit “video reflections” about what they have learned about the regulations they were found to have violated.

The court held that Tinker applies on college campuses. It declared the reg invalid under Tinker because it could (and in this case did) allow for sanction of non-disruptive expressive activities. The injunction prohibits university officials from enforcing the reg against the seven students and ICEBreakers members (yay, non-universality). In FN 8, the court “stayed” the requirement of the video reflection imposed in the disciplinary hearing.

Quick thoughts.

• Tinker should not apply on college campuses or should apply in a much more speech-favorable way. The district court applies a singular standard, with no suggestion of variance for a university. The court notes it is a moot point because this reg fails the most basic version of Tinker, let alone something more speech-protective.

• I cannot shake the Younger problem here. The students are challenging a law that had been enforced in a state administrative proceeding for which judicial review is available. Younger never came up in the briefing or the opinion. The plaintiffs (and the court) frame this as enjoining prospective enforcement of this reg against these plaintiffs–a purely prospective remedy that does not seek to undo past punishment. That works if the goal is to allow ICEBreakers and these students to do this again in the future.

But the complaint sought to undo the past sanctions. FN 8 “stays” the previously imposed sanctions as a side effect of the injunction–because FIU cannot enforce the reg, the ongoing sanctions imposed in the disciplinary proceeding must be stopped.That does not work if we take Younger seriously. Labeling it a “stay” does not change the basic point–a federal court is interfering with a live state adjudicative proceeding that imposed a sanction for past conduct. Not that I want the students to lose a federal forum or to be forced into state proceedings. But no one has explained why ordinary Younger principles do not require that.