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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.)

Every so often I realize that I’ve not read a book or seen a movie that I should. The latest example is “A Man For All Seasons.” The performances and the dialogue are terrific. Robert Shaw’s Henry VIII is especially good.

Indeed, this play/movie has been quoted by the Supreme Court about 5 times. (Mostly the line about giving the Devil the benefit of the law). Other than Shakespeare’s canon, I’m not sure there another play with as many quotes in judicial opinions.

I recently taught Gideon for the first time and learned quite a bit. For example, I knew next to nothing about Bruce Jacob, who argued the case for Florida. He’s a remarkable person who went on to make significant contributions to indigent criminal defense (as well as serving as a law school Dean). Earlier this year, he published a book about Gideon, and I recently emailed with him about his first-rate brief in the case. (He’s 91 now). Just another example of strong arguments that received 0 votes on the Court.

It’s also useful to pose the issue as “Does due process require a party to have a lawyer?” This framing removes Gideon from the Sixth Amendment context and broadens the inquiry to focus more on the interest at stake or the nature of the proceeding. I don’t have any answers to suggest. Just questions.

For folks attending SEALS this week:

Tom Metzloff (Duke) and I have organized a Constitutional Law Workshop on the Trump Administration’s attacks on institutions. The workshop consists of three discussion groups exploring a different institution: Judiciary (Wednesday), Universities and the Academy (Thursday), and the Legal Profession (Friday).

Each runs 9 a.m.-noon on the respective day.

SEALS discussion groups are great because anyone can show up to participate as a discussant. So if you have anything you would like to add or just want to listen to a fun conversation, please come.

Here is our AALS ad. We are hoping to hire 5 entry-level or junior laterals in doctrinal subjects and Legal Analysis. Please contact me if you would like further information.

The INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW invites applications from entry-level and lateral candidates for up to four full-time, tenured or tenure-track faculty positions to begin at the start of the 2027-28 academic year. The workload is 40% teaching, 40% scholarship, and 20% service. New hires will teach one or more required 1L course(s) and/or one or more core upper-level course(s). A successful candidate might expect to teach two or more of: Constitutional Law, Contracts, Criminal Law, Criminal Procedure, Evidence, Family Law, First Amendment Law, Introduction to Business Entities, Property, Torts, and Trusts & Estates as part of a four-course teaching package. 

The Indiana University McKinney School of Law offers a competitive salary and generous benefits, a three-course teaching package in the first year for pre-tenure hires, a semester of pre-tenure research leave, a generous professional development account, funds to retain research assistants, and summer research grants for productive scholars.

Indiana University is an equal opportunity employer and provider of ADA services and prohibits discrimination in hiring. See Indiana University Notice of Non-Discrimination here which includes contact information.

The culture of Indiana University Robert H. McKinney School of Law and of IU Indianapolis is of utmost importance. We dedicate ourselves to excellence in teaching, research, and service. All faculty members at Indiana University abide by the Principles of Ethical Conduct and AcademicAppointee Responsibilities and Conduct, and support the Code of Student Rights, Responsibilities, and Conduct and the institutional value of intellectual diversity. Faculty presence on campus is essential for the culture and effectiveness of our school. Any requests for remote work must be for the benefit of the school, approved by the dean each semester, and documented through a school process.

Indianapolis, where the law school is situated, is the state capital and a vibrant city with a wide variety of restaurants, theaters, and music venues; substantial outdoor green space; an award-winning international airport; and professional football, basketball, baseball (AAA), and soccer (USL) teams. Indianapolis regularly ranks near the top in listings of Best Affordable Places to live, according to independent rankings reported by MSN.com. To apply, please complete IU’s online application at https://indiana.peopleadmin.com/postings/33873with a CV, letter of application, writing sample (a recent scholarly article or work in progress), list of three references, and any recent course evaluations. 

Quick points about the controversy over subpoenaing journalists and the discourse around that.

• We have two live controversies: DOJ subpoenas to NYT reporters over stories about the Qatar jet and subpoenas to former Fox reporter Catherine Herridge in a Privacy Act case against FBI agents who leaked a person’s name and information to Herridge. They are at opposite ends of the litigation process. DOJ issued the subpoenas about two weeks ago and any litigation to quash the subpoena is just beginning. Herridge is at the end of the line–the court refused to quash the subpoena, she violated the subpoena, the court held her in contempt, and the higher courts refused to stay the contempt order; all that remains is whether she cures the contempt by complying with the subpoena, pays the $ 800/day fine, and faces a higher sanction for non-compliance.

The same apparent principle applies to both cases–the right of journalists not to disclose sources. Yet most liberal hand-wringing focuses on the Times while ignoring Herridge.

It is tempting and easy to see this as partisan. Liberals hate the Trump Administration and distrust this investigation, thus they decry the threat to a free press. But liberals also hate Fox News and government officials using Fox News to launder smears of a private individual, thus they are less outraged by the subpoenas. Needless to say, this reflects the approach of many to the First Amendment–protection for those whose speech I like.

A second possibility is to see government-issued subpoenas in a government criminal investigation as more threatening than a third-party subpoena in a private civil action. But this seems to get it backward. To the extent any qualified privilege requires a balancing of interests, the need for the information would seem to be greater in a criminal case that serves a greater public interest than in a private damage action.

• The criticisms are a mess, conflating the First Amendment as law with the first amendment as norms and conflating descriptive arguments about the law as is with normative arguments about what they wish the law was. This piece by CNN’s Elie Honig exemplifies: Even if the Branzburg dissent has “aged” better than the majority, it remains the dissent. Thus the Trump Administration (and, again, no mention of Herridge in this piece) is not ignoring First Amendment principles as opposed to executive norms and constraints. One can believe these constraints are important and even motivated by first amendment values; it takes another step to say these subpoenas violate the First Amendment as law.

Even if the First Amendment creates some journalist privilege, it is not absolute; at best it requires some sort of balancing. Which means, of course, that sometimes the balance will favor the journalist and sometimes it will favor the party seeking the information. It thus is too late to complain that the Harridge subpoena is some affront to the First Amendment; several courts considered and rejected her First Amendment arguments. Similarly, it is too early to complain that the DOJ subpoenas violate the First Amendment; the Times may prevail on its First Amendment arguments.

Update: DOJ withdrew the subpoenas in the middle of a hearing in which District Judge Arun Subramanian (S.D.N.Y.) indicated he likely would quash the subpoenas, in part because government attorneys acknowledged that: they did not do the legal research to identify controlling circuit precedent on journalist privilege, did not take other efforts to obtain the information (as required by controlling circuit precedent), and did not notify the presiding judge that the subpoenas were directed to journalists.

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Tom Flesher, Variable Standards: How Many Uninjured Class Members are Acceptable?, 4o Touro L. Rev. 287 (2025), considering the standard for when a class has too many members without injury.

This story pissed me off more than anything I have read recently. And Raul Labrador knows where he can take the heart he put out to this girl’s family.

In Mullin v. Al Otro Lado, Justice Thomas concurred separately in part on the ground that the President has inherent authority to exclude aliens. I found this interesting because I know that Judge Augustus Hand contested this claim in an opinion he wrote in 1921. (Justice Robert Jackson relied upon that opinion, United States v. Western Union Tel. Co., in Youngstown.) Here, FWIW, is what A. Hand said in the relevant passage:

“Why does not the President, in the absence of any act of Congress, have the right to refuse to admit foreigners to our shores, and to deport those aliens whose presence he regards as a public menace? While the prerogative of the British Crown in respect to the admission and deportation of aliens is not clearly ascertainable, its right, in the absence of an act of Parliament, to refuse permission to aliens to enter British territory was contested by Sir W. Phillimore on behalf of the alien in 1891, in the case of Musgrove v. Chun Teeon Toy (L.R. 1891, A.C. 272), and the privy council said that the question involved such important considerations that they would express no opinion as to it, and would decide the case solely under the act of Parliament invoked by the Australian government. Lord Herschell intimated that no authority existed that an alien had a right of action for exclusion from the country.

As eminent an authority as Prof. Dicey makes the unqualified assertion in his book on ‘The Law of the Constitution‘ that—‘The crown cannot, except under statute, expel from England any alien whatever, even though he were a murderer, who, after slaughtering a whole family at Boulogne, had on the very day crossed red-handed to Dover. The Executive therefore must ask for, and always obtains, aid from Parliament.” 

This one is fun. The Delaware Court of Chancery considered the availability of “counterclaims-in-reply” (plaintiff pleads acounterclaim in its Answer to Defendant’s Counterclaims). Delaware follows the FRCP, so the court surveilled the state of federal law, which is a mess among six positions.

1. Never allowed, because counter-counterclaim is not an enumerated pleading in FRCP 7(a).

2. Allowed, because “Answer to a Counterclaim” is an allowed pleading and “a pleading” can state a counterclaim. Wright & Miller recognize that this approach comports with the plain language of Rule 7(a) and 13.

3. Allowed if the counterclaim-in-reply is compulsory to the counterclaim.

4. Allowed if permissive.

5. Treat the proposed counterclaim-in-reply as a motion for leave to amend the complaint to include this new claim. W&M recommend this as the “more orderly procedure.”

6. As a limit on #5: Ask what the counterclaim-in-reply is trying to do. If it is an effort to amend the complaint, treat it as a motion for leave (subject to Rule 15). If it is attached to a different pleading, allow it as a counterclaim-in-reply.

The court adopted # 2 for its consistency with the plain language. It recognized that # 5 is more orderly, but it declined to automatically treat everything as a motion for leave to amend.

In rejecting # 1, the court makes a point I share with my students: Counterclaim is not an enumerated pleading. It is a claim contained within some other pleading, such as an Answer to a Complaint or, here, an Answer to a Counterclaim.¹ Responding to the defendant’s concern for a “procedural nightmare” of counterclaims to counter-counterclaims ad infinitim, the court notes the absence of any cases in which this has happened despite Rule 13 being materially unchanged since 1938.

Not sure whether to present this as an in-class problem or an essay next spring.

1. Also true of crossclaims. But not third-party claims, which must appear in their own pleading, called Third-Party Complaint. ↩︎

Jack Goldsmith at Executive Functions on the Trump DOJ’s efforts to subpoena journalists in leak investigations and the risk that it might prosecute journalists under the Espionage Act for publishing confidential national-security information.

Despite the rhetoric from media members, the First Amendment does not clearly prohibit either government effort. At best, the First Amendment imposes limits on compelled disclosure–whether the Fourth Circuit’s bad faith approach (which Goldsmith believes SCOTUS would accept) or the Second Circuit’s balancing of prosecutorial need and materiality–that are relatively easy to overcome in most cases. And no one knows how the First Amendment interacts with the complexities of the Espionage Act.

Instead, the general reluctance (if not refusal) to pursue journalists reflects the same norms that Trump II has been ignoring and likely will continue to ignore going forward.

University of Chicago Law announced a new AI policy, seeking to combine incorporating AI in some areas while making other areas “AI-resilient.” The latter includes an in-person oral presentation for upper-level writing courses, prohibiting laptops and tech in 1L classes, and in-class/no-tech exams in 1L classes.

I have prohibited laptops in all my classes for years, so I support the second plan. I had not considered the connection between AI and in-class computers–I guess students could use Claude or ChatGPT to get answers in the Socratic dialogue in the moment, although it would seem too fast-developing. But to the extent AI resilience pushes in the same direction as the pedagogically beneficial removal of laptops, awesome.¹

The third point highlights what I hate most about AI in legal ed: It has forced us backwards on assessments. Take-home assignments–which allow for better-written, better-edited, better-analyzed, more thoughtful essays written in a context that better reflects the reality of legal work–are ideal, but also prime targets for AI abuse. We return to time-crunched in-class assignments that do not reflect the real world and do not allow for the same thoughtful and complex analysis.²

The answer may be more oral assessments. Josh Blackman describes the oral mid-term he wants to offer. I have described my use of oral arguments as the final assessment in my upper-level Fed Courts and Civil Rights classes. I could try to recreate something similar for Civ Pro and Evidence, although class size makes it more difficult.

Another thought is assigning greater evaluative weight to portions of class participation. My Evidence class is built around two fictional cases and evidentiary questions from those cases; during class, we go through the rows asking students to argue the evidence from each side and as the court. In essence, each student does 3-4 short oral presentations (similar to what Josh describes) over the semester. Perhaps I could increase the value of each of those. Not sure how to match it in other classes, which are less problem-based and more Q&A dialogue.

1. This faces the problem of the recent increase in laptop accommodations. ↩︎
2. IN Civ Pro and Evidence, I emphasize properly numbering rules, getting to the precise provision in the right form (e.g., FRCP 26(c)(1)(C)(iii)). I think this is important in code classes, part of learning the “language” of the code. I cannot expect that precision in three or four hours. ↩︎