Announcement from SEALS Board.
Russ made the SEALS and the SEALS Annual Meeting into what it is–an engaging and intellectual academic conference that offers opportunities to a broad range of scholars that also allows people to have fun with their families.
In their casebook The Jurisprudence of Sport, Mitch Berman and Richard Friedman create a course using sports rules to illustrate law, jurisprudence, and legal systems. A unique rules issue arose in last night’s Red Sox-Blue Jays game; the coverage of it illustrates how bad media is at covering law.
The Sox had 1st/3d with one out, but the scoreboard showed two outs (the prior play had created some confusion). The batter flied out to center. Believing there were two outs, the runners ran on contact, with the runner on 3d crossing the plate. Realizing there was only one out, the Jays threw the ball to first base and that runner was called out for the final out of the inning. Then everyone became confused about whether the run counted (since the runner on third crossed the plate before the throw to first). After a discussion, a call to the rules center in New York, and a 15+-minute delay, they decided the run counts.
The controlling rule is Rule 5.09(c)(p.50), which establishes “appeal plays”–plays in which the umpire will call a runner out only if the defensive team “appeals” by doing something to trigger a delayed call. Under (c)(1), the defense can appeal if, after a fly ball is caught, the runner fails to retouch his original base before he or the base is tagged. It follows that if the team fails to appeal (to attempt to tag the base and trigger a call), the umpire will not call that runner out for failing to retouch.
In this case, two runners left before the catch. The Jays appealed to first base and got the out on that runner. They did not appeal to third, since the appeal to first was the final out. Absent an appeal, the runner on third scores. And because he scored before the Jays tagged first base, the run counted. The umpires called this a “time” play; they checked with the replay center to confirm the timing. With that confirmed, the run scores.
The problem was the Jays’ failure to appeal to third. Under text at the end of (c) (p.54), an appeal (the throw to the base he left) must be made before the next pitch or, if the play ends a half-inning, before the defensive team leaves the field.
This raises the possibility of a “fourth out,” as a later paragraph in (c) describes:
Appeal plays may require an umpire to recognize an apparent “fourth out.” If the third out is made during a play in which an
appeal play is sustained on another runner, the appeal play decision
takes precedence in determining the out. If there is more than one
appeal during a play that ends a half-inning, the defense may elect
to take the out that gives it the advantage. For the purpose of this
rule, the defensive team has “left the field” when the pitcher and
all infielders have left fair territory on their way to the bench or
Clubhouse.
So even after the third out on the appeal to first, the Jays could have removed the run by appealing to third. Why didn’t they? Because they already had left the field, as defined.1 That is the key to the entire play.
Yet the announcers never mentioned it or showed it on the replay (the color commentator was lost throughout the play). Most game reports either failed to mention it or buried it. Everyone was too busy laughing at the concept of a “fourth out”2 or criticizing the players for not knowing how many outs there are or shouting about how they had never seen anything like this before (even thought it happened four years ago and “how is it possible to get four outs in an inning” is a common rules-trivia question). I had to read multiple stories before finding one that included that one central fact on which the entire legal controversy turned.
Sounds too familiar.
Every so often I feel obligated to explain why I’m posting less often. The explanation for this summer was (1) summer teaching; (2) summer travel; and (3) I’m the chair of our hiring committee.
The other reason is that I’m getting close to finishing what will be my longest article in 20 years. My publications are typically books or short articles. But this draft (on the Bayh Subcommittee) is part of a future book that works well as a long article. But that takes up more bandwidth than my short articles do. Ergo: less frequent posting. Not for much longer though.
So says the Fourth Circuit, where the plaintiff sought a vanity play “FTP&ATF.” The court distinguished the unique alpha-numeric combination on the plate from the mottoes, messages, or promotions (“Live Free or Die;” “Sons of Confederate Veterans”) that Walker held constitute government speech. The court remanded for the district court to conduct the forum analysis and decide whether the government has a sufficient interest in restricting this private
Walker is a controversial and largely unpopular decision. But I have long believed this was the appropriate framework–the design and content of the plate is government speech, while the alpha-numeric combination is each driver’s speech. That is, “Live Free or Die” is New Hampshire’s speech; WtchTwr would be George Maynard’s speech.
The proliferation of specialty plates complicates the analysis. But it does not change my instinct about the plate design and the messages on that design. If LFoD is government speech, so is Sons of Confederate Veterans or “Save the Environment.” Either way, however, the one-of-a-kind message that one driver chooses for his plate is his unique expression.
South Carolina legal bigwig Alex Murdaugh was convicted of killing his wife and son; the South Carolina Supreme Court overturned the conviction on the grounds that the court clerk had improperly communicated with and influence the jurors. Murdaugh filed a § 1983 action against the clerk, seeking to recover the attorney’s fees he expended defending himself; I wrote about what some interesting § 1983 questions around the lawsuit.
I did not anticipate the grounds the district court found for dismissing: lack of standing. According to the court, the clerk did not cause him to expend the fees he seeks to recover; had the clerk not engaged in the constitutionally invalid conduct, Murdaugh would have expended the same fees defending the murder charges. Therefore, the court says, Murdaugh cannot show traceability (causation).
True enough. But calling this standing (again) makes a jurisdictional issue out of what should be the merits of the case. This is a tort action in which the court found that the target defendant did not cause the past, already-incurred injury or damages. Imagine a rough analogy–Driver X hits the plaintiff, while Driver Y was on the other side of the the ride, also driving negligently. Plaintiff would lose a negligence suit against Driver Y for lack of causation, which would be treated as a merits issue on 12(b)(6)/summary judgment. There is no reason for a different ground in a “constitutional tort” action in federal court.
Because the decision is not final and therefore the case lacks the jurisdictional requisites for the Court to hear the appeal now.
This is what Prof. Adam Sopko (U Colorado) and I argue in this amicus brief submitted yesterday on our behalf to SCOTUS. The summary of the argument is this:
“To preserve the vital interest of comity between the state and federal systems, several limits govern this Court’s authority to review decisions from state courts, including that such decisions be “final judgments.” 28 U.S.C. § 1257(a). States have enjoyed “wide discretion in respect to establishing [their] systems of courts and distributing their jurisdiction.” Ohio ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 81 (1930). State courts have developed practices that are in some ways familiar and others entirely foreign to their Article III counterparts. To respect these features of state prerogatives, the Court has long looked to state courts’ understanding of their own procedures and jurisdiction to determine whether a state-court judgment is “final.”
Petitioners’ finality argument relies on viewing the judgment below as a stand-alone proceeding, rather than an interlocutory appeal, and thus controlled by Atlantic Richfield. The Court’s decision there, like some earlier cases, recognized state high court decisions resolving certain independent proceedings as final. Montana’s supervisory writs, like the other extraordinary writs animating these cases, are original remedies issued by supreme courts against inferior tribunals to enjoin ultra vires acts. Petitioners’ argument, then, rests on the premise that Colorado’s Rule 21 creates an original remedy that issues to rein in unlawful judicial acts. That premise is wrong. First, Petitioners overlook the Colorado Supreme Court’s revisions to Rule 21 nearly 30 years ago to implement its supervisory power, a source of authority common to state courts with no federal counterpart. Using this power, the court grants review of novel issues and cases of significant public importance that are not ultra vires. Thus, unlike the formal extraordinary remedies that run against judges, as in Atlantic Richfield, Rule 21 simply allows expedited appellate review. Second, while the Colorado Supreme Court can and does issue extraordinary relief like prohibition and mandamus under Rule 21, it requires specific pleading to do so that Petitioners did not provide. Colo. App. R. 21(e)(1). Instead, Petitioners framed the case as one of significant public importance and one warranting expedited review, not an extraordinary remedy against a judge. Third, Petitioners’ other arguments attempting to frame Rule 21 as an original, standalone proceeding only undermine their theory. They emphasize Rule 21’s automatic stay provision without noting that the state’s rule governing interlocutory appeals uses the same language. And they make much of the use of the “original proceeding” label in Rule 21. But in Colorado, jurisdiction does not fall into the binary their argument requires. The finality inquiry turns on the Colorado Supreme Court’s own understanding of its jurisdiction and procedures. Pet. Br. 18. Viewed on its own terms, the judgment below was not final and thus beyond this Court’s jurisdiction. Deciding this case before a final judgment is not only imprudent, because it requires this Court’s premature intervention, but, more seriously, disruptive of the comity and collaboration that undergirds the final judgment rule’s key federalism values. As with other limits on this Court’s review, a coherent scheme of jurisdiction—including not just “whether” but also “when”—protects the interests of states by assuring that state courts can perform their essential functions under their state constitutions.
This Court has long ensured that state judicial procedures and the overall architecture of state procedure will be vouchsafed as an essential element of our constitutional federalism structure. Here Colorado has a well-established process for judicial decision-making and review, embodied in Rule 21. Asserting jurisdiction now interferes with this authority, with consequences not only for Colorado and its supreme court practice, but for the values of federalism long recognized by this Court.”
Why is this argument important to make and important for the Justices to consider? Because state constitutions are critical instruments in our constitutional system to design and structure our state courts and their procedures. It is fully consistent with our commitment to federal supremacy in matters of federal law to mandate that the Supreme Court fully respect state judicial procedures and to exercise its jurisdictional authority consistent with the constitutional architecture of state processes. This is not a new insight, but one that undergirds the relationship between federal and state courts and, more generally, the system of federalism embodied in our constitutional framework.
A dilemma in my research on the Twenty-Fifth and Twenty-Sixth Amendments is that a key source is hard to obtain. I refer, of course, to the “CBS Evening News with Walter Cronkite.”
Think about it. Newspapers were an important media source in, say, 1971. But the network news programs were equally, if not more, important in shaping public opinion. It’s easy to look at digitized newspapers through databases. But there is no easy way to search network news transcripts. Some archives hold the actual video or hard copy, but they are more difficult to navigate.
Brad Wendel asks “Should Law Schools Teach Responsible Use of AI?”He answers the question in the first paragraph.
Wendel does not stop with the shortest-ever Substack essay. He offers three reasons: 1) “AI” is not monolithic, varying by practice area, firm, and even groups within firms; schools cannot train students on a single “AI” that will meet that diversity of demand; 2) the technology is changing too quickly; 3) students need to learn legal analysis and analytical skill, which we are good at teaching; focus on that rather than the thing at which we are less good.
Brad ties this into the longstanding demand for “practice-ready” lawyers. That requires similar levels of detail, specificity, and diversity that we cannot impart in a classroom or in a broad curriculum within a short window.
Post-Slaughter, I wonder if a future Congress might give states more discretion to enforce federal law. Suppose concurrent jurisdiction were conferred on topics that are now exclusively federal. This would weaken federal authority and give the out party more power to influence significant decisions.
Take antitrust law, which has long been concurrent. The DOJ cannot unilaterally approve a merger. State AGs, some of whom will inevitably be in opposition, can object (though they cannot unilaterally block a merger). This is a more complex administrative system than, say, patent law, which is exclusively federal. But maybe there is a good reason for bringing the states in on sensitive topics.
I don’t think that there is a unitary executive objection here. Congress has broad power under Article I to confer or withhold exclusive federal authority. This includes qui tam suits by private individuals, though that longstanding practice is subject to constitutional criticism.
Back from SEALS, with some random items that have built up over the week.
• The trio of discussion groups went really well–well-attended and generating thoughtful conversations. Two throughlines emerged for all: 1) Finding the line between healthy (if pointed) criticism and harmful assaults on institutions and 2) Identifying what is genuinely unprecedented in degree or kind and what is an echo of what has happened. There was a consensus that the law firm E.O.s represent something new, whereas universities and the judiciary have been targets of the right for decades.
• On that note, the Times has a long piece on Paul Weiss’ decision to settle with the Administration in 2025–the inner dynamics surrounding the settlement and the fallout. This is not going away.
• The Forward reports on a letter from a group of Maine rabbis trying to play both sides of the fence–calling for Israel to work for peace and urging political leaders to stop labeling Gaza a genocide. It is of a piece with this JTA essay complaining that liberal Zionists cannot protest Netanyahu when Mayor Mamdani calls him a war criminal or urges people to protest against him.
The common theme: Zionism does not require one to support everything the Israeli government does, but it does limit who, how, or if one can criticize that government. There are legitimate critiques (and presumably critics) of Israel–and thus illegitimate critiques and critics of Israel. The rabbi’s letter, directed to Democratic Senate candidate Troy Jackson, frames the sentiment:
Work with us to figure out how to express outrage and legitimate critique of Israel’s government without succumbing to language that you might not know is an ancient antisemitic trope, or dismissing the security needs of Israel’s citizens.”
But there is at least an argument that what Israel has done in Gaza qualifies as war crimes or as genocide, certainly as the war has progressed. (Never mind the silly notion in the JTA piece that because Netanyahu has only been indicted , but not convicted, of war crimes it is wrong within public discourse to label him a war criminal). And that conclusion or opinion is not automatically or necessarily driven by or a reflection of antisemitism. Acceptthat some people singularly criticize the Israeli government and leaders for conduct that other countries engage in and that such singling out might be antisemitic; it does not follow that the Israeli government must be immune from honest, even sharp, criticism of its conduct.
• [Edit]: Forgot one other item. People should be able to display anti-trans signs at games. And people–whether other fans or a minority team owner–should be able to tell them that they are “fucking insane.” Otherwise, the WNBA’s insistence on an “inclusive environment where every fan is treated with respect” encapsulates the Preferred First Speaker problem–those who display disrespectful signs are entitled to inclusivity and respect and to speak their minds, not those whom the signs target and not the allies of those targets who tell the displayers where to put those signs.
Since, insofar as I post here, I so often indicate or directly state my disagreement with Josh Blackman, allow me to make a point of noting an area of common ground: As a general matter, legal academics’ Substack pages, at least insofar as they’re about law, should be entirely free. At the VC blog, Blackman writes:
At some level, it irks me that law professor[s] charge people for their work. Our job is to diffuse information to the world. Law professors are fortunate that law reviews publish their articles online without fee. In other disciplines, peer reviewed journals are extremely expensive to access. From time-to-time, professors publish Op-Eds in major outlets like the New York Times or Wall Street Journal. On someone else’s platform, the paywall cannot be avoided. But why should a professor erect his own paywall?
I agree. It is irksome. I would add that although this may be true for all academics, it is especially true for American law professors. We are fortunate not just in that most of what we publish is made available without fee, but also because American law professors are generously paid, if not greatly overpaid.* There’s nothing shocking about wanting more money on top of the salary we already get to write and publish in fulfillment of our obligations as scholars. (Or, as in the case of writings on Substack, podcasts, etc., our service obligations, since these writings rightly do not count as scholarship.) But we certainly don’t need more money on top of that. (I thus disagree with Josh when he writes in a subsequent post that “virtually all academics who forego careers in legal practice have to find opportunities for outside income.” They want to find those opportunities; they don’t have to find them. Indeed, perhaps law schools should impose stricter limits on those opportunities.) As a matter of what I would call institutional and professional morality, we should not ask for it, especially for commentary on or around the law. We’re already paid, and paid well, for doing these things.
Of course there are writings for which law professors receive payment. But most of those examples are either a matter of well-worn custom, or reflect genuine expenses on our part or that of a third party, such as the publisher of an academic book, or are out of our hands–you can refuse the payment a newspaper offers you for an op-ed, but that won’t eliminate the paywall it puts in place for that op-ed–or some combination of the three. As it is, some of those exceptional instances are already, and rightly, debated, as the ongoing effort to come up with low- or no-cost alternatives to casebooks suggests. We should not be adding to the list of exceptions.
A strong default allows for the possibility of cases in which it makes sense to require a fee (which should be as small as possible–enough to serve a legitimate purpose and no larger). All I would require is excellent justification, publicly and clearly stated, along with a commitment to regularly and publicly revisit that policy. Derek Muller offered one such justification on his Law School Docket Substack page. Without evaluating that justification, one can at least commend Derek both for his default position and for attempting to justify the shift loudly and clearly. Up to a point, I could also imagine making an exception for cases in which the academic Substacker incurs genuine costs, those costs are incurred for meaningful things relating to original reporting, such as FOIA requests, and the academic’s institution can’t or won’t reimburse them. I wouldn’t include unnecessary costs, such as the money involved in adding more bells and whistles to a podcast. Obviously, charging simply because the creator is putting lots of time into Substacking would not count as a serious justification for paywalling material.
Both of these views about what oughtn’t count as sufficient justification for charging a fee may, I acknowledge, be influenced by my priors: that podcasts are junk; that anything advertised to subscribers as a “BREAKING” podcast is junk on steroids; that most Substacks, podcasts, and similar outlets consist of commentary, most commentary is junk, and none of it is a substitute for actual journalism; that we live in a grifter culture (headed by a stunningly vulgar and corrupt grifter president–the gift-linked article is a must-read for all lawyers and, indeed, all citizens); that the addiction to side hustles is an important part of that grifter culture; that the fracturing of media and the so-called democratization of journalism and public discourse was a terrible mistake; that subscribers pose more of a threat to genuine independence of mind than advertisers; that most of what academics, with their love of self-serving bureaucratic euphemism, call “public engagement” is actually mere self-promotion or mutual backscratching; and that, as with journalism, the academy’s fascination with and migration to social media has been a massive and possibly a fatal error. I’m mindful that these priors may influence my position on what counts as a good or bad reason for charging for content, although the fact that I’m right about all of this balances things out somewhat.
The possible exceptions notwithstanding, the strong default should be that all of this stuff is free and readily accessible, preferably without so much as the requirement that one go through a subscription process even for free content. I don’t subscribe to any academic Substack that charges a fee, at least beyond subscribing for the public material only, and I encourage others to do likewise and to publicly criticize academics–again, especially legal academics–who do charge for their content. Not to put too fine a point on it: Legal academics who profit off of fee-based enterprises of this sort without excellent, clearly stated reasons are acting immorally and to the detriment of the academic enterprise.
I’m happy to agree with Josh on this and equally happy to say so.**
* This is a problem that could be mitigated somewhat if American universities drew a structural division between law as an academic discipline that confers undergraduate and graduate degrees, and law as a professional educational program whose diplomas are part of the licensure requirements for the profession, and whose instructors are either adjuncts still in active practice or have been selected mostly for having serious practice credentials. This would enable the latter category of school to hire and teach more effectively; make it easier for universities to pay the former category of academics salaries closer to those in the arts and sciences, reflecting both the discipline’s proper location within the university and the likely drop in demand for such a program of study; minimize the embarrassments attendant upon the endless failed effort to treat professional schools as a serious academic enterprise; and, perhaps combined with a much stricter limit on moonlighting for faculty within academic departments of law, make legal academia less attractive for those without a genuine vocation. It might also lead to a more just salary structure, in which clinical and legal research and writing faculty, who would remain at the professional schools, would be paid salaries closer to the amount that we currently and inexplicably hand out to teachers of subjects like constitutional law. The current approach, in which they make less, is somewhat akin to an engineering school paying minimum wage to the key engineering faculty and top dollar to the theoretical physicists.
** While I’m at it: Blackman is also right that the Supreme Court should cancel its summer recess and hear and decide cases year-round–and, perhaps most important, issue opinions year-round on a rolling basis; the late June pileup is unseemly, unhelpful to the public and the profession, and unnecessary. He is wrong, however, in recommending that the Justices hold press conferences. I’m not sure they should even give speeches. Judges who have nothing especially interesting to say should say nothing at all, and judges generally have nothing especially interesting to say. No doubt we agree on much else. It’s hard to know, given that, at least at the Volokh blog, in the last 18 months or so he has largely given up any public commentary on the actions of the most constitutionally active, significant, and newsworthy branch of the federal government.
The American Association of University Professors today in a press release commemorated a great achievement: It has gone 110 years without making a single national political endorsement.
“Great” does not mean “hard.” It’s easy enough for a membership association whose members hold varying views not only about whom to endorse but about the wisdom of making endorsements at all, and whose strength and effectiveness ultimately depends on the public’s (diminishing) trust in universities, to simply not make political endorsements. But making that commitment again and again over 110 years, despite all the temptations and vain hopes of power-brokering that may have afflicted one now-forgotten leader or another over that time, is impressive. It suggests that the AAUP has always been aware that, apart from every other possible objection, it simply lacks the political and financial capital to usefully make endorsements; to make such a move would simply squander goodwill in exchange for, at best, nothing. The 110-year record is a testament to common sense. It demonstrates the AAUP’s understanding that any power it has lies in its link to universities and to the university’s ideal of the disinterested pursuit of truth. Like Supergirl under a red sun, its power fades the further away it moves from that ideal; and, like Supergirl‘s critical reception and box office receipts, it knows that it’s always one wrong move away from ignominy and irrelevance.
The AAUP, under the leadership of cyber-based ethnographer Todd Wolfson, is to be commended for recognizing and publicly marking this achievement.*
* (To be sure, the occasion for marking the 110 years of common sense was a press release breathlessly announcing that it was making its “first-ever national electoral endorsement.” Also to be sure, its choice for this endorsement, Michigan senatorial primary candidate Abdul El-Sayed, who will gain nothing from the endorsement and in return will give the AAUP nothing it would not have gotten anyway, is controversial even in his own party, hardly a shoo-in in his own state, and would by no means command strong support even among the mine run of mostly liberal American academics. This suggests that Wolfson has been more unwise and much more susceptible to the temptation of the illusion of power and influence than his predecessors. More importantly, it underlines and doubles down on the ongoing mission of the AAUP’s current leadership to stake out ideological and policy positions for their own sake and not for the sake of their members and their views. It’s an odd move for a membership association, but I’m not sure the current leadership cares all that much about that. Perhaps they figure that come the revolution, we’ll all be AAUP members. Still, at least they marked the anniversary, even if they marked it with a tombstone.)
