Should President Clinton Nominate Merrick Garland for the Court?

With all due respect to Yogi Berra, I’m going to talk about one of the first major decisions that President Clinton will have to make. (I say “have to make” because I doubt that the Senate will confirm Judge Garland in the lame-duck session.  If they do, though, then never mind.)

One factor is whether Republicans or Democrats control the Senate next year.  If the GOP retains control, then the argument for nominating Garland again gets stronger, as he is easily confirmable in a non-election year.  If Democrats win the Senate, though, then the choice is more difficult.  The President could nominate a younger and more liberal judge, or perhaps go for younger and more diverse in some sense.  Why stick with Garland?

I suppose one answer is that Judge Garland is being treated badly and not nominating him next year would be, well, treating him even worse. Nevertheless, there is no vested right in a nomination of this sort from President to President (even of the same party). There is also the thought that even with a Democratic Senate the President may not want her first Supreme Court nomination to cause a fight.  She is almost certain (you would think) to get at least one more vacancy, and maybe that is the time for a different pick.

A contrary case could be made, though, that by making that different pick now the President would discourage Senators from repeating the Garland precedent. Picking Garland again basically says to the Senate that there is no real cost to imposing a presidential election year blockade. If someone else gets picked who is worse from the Senate’s point of view, future Senators might say “See, that strategy backfired. Don’t do that again.”

But is this true?  By the time another Justice dies in a presidential year when the Senate and White House are controlled by different parties, we might all be dead.  Will anyone really care about the Garland precedent except for some historians?  Seems doubtful.

Anyway, let’s revisit this after Election Day and see where the Senate stands.


Advice on Legal Book Publishing

Opinion Poll on Behalf of Younger Colleague Ready to Publish First Casebook in First Year Course.

Suppose offers of publication by the following publishers. What’s the order of ranking, assuming all terms are equal?

Aspen, Carolina, or West?

Please feel free either to leave comment or send me an email [lacunningham@law.gwu.edu]


Major Contracts Symposium at GW

qtq80-Sh2bmhDivergence and Reform in the Common Law of Contracts is the title of this year’s GW Law Review Symposium and anyone interested in contracts and/or comparative law will want to join us for it on  Saturday November 19.  Here is a summary from the official web site for the event (RSVP here):

This Symposium continues a tradition of biennial conferences that began at the University of Sheffield, UK in 2011, followed by a conference held at the University of Edinburgh in 2013. But this 2016 Symposium is not your grandfather’s contract law. Instead, this conference takes a 21st Century approach to comparative issues in contract law, examining the most pressing controversies, debates, and challenges currently shaping the United States and United Kingdom’s shared legal tradition in the area of common law contracts.

Symposium papers from the previous two gatherings have been published as books by Cambridge U. Press and Oxford U. Press; papers from the current symposium will be published in the GW Law Review.

Topics include: Comparative Law and Reform; The Share Economy; Remedies; The State of the Interpretation Debate; Good Faith; and Consumer Contracts

Participants include:

Miriam Cherry, St. Louis U.

Lawrence Cunningham, GWU

Larry DiMatteo,  U. Florida

Hon. Lord Hodge, UK Supreme Court

Martin Hogg, Edinburgh

Geraint Howells, City U. Hong Kong

Judge Barbara Keenan, 4th Circuit Court of Appeals

Judge Carlos Lucero, 10th Circuit Court of Appeals

Blake Morant, GWU

James Nehf,  Indiana U.

Robert Stevens,  Oxford U.

Matthias Storme, KU Leuven

Rolf Weber, U. Zurich






FAN 128 (First Amendment News) Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond Hazelwood Ruling

The majority opinion written by Justice White . . . announced a new category of speech — “school sponsored” — and a new [and] highly deferential standard for evaluating censorship of that kind of speech. . . . Justice White had originally wanted to go even further in expanding school officials’ authority. A draft opinion he circulated among the Justices would have permitted censorship unless it was “wholly arbitrary . . . .”  –Catherine J. RossLessons in Censorship (2015) 

Many who follow free speech law probably think a student journalist’s rights begin and end with the Court’s ruling in Hazelwood v. Kuhlmeier (1988). In his majority opinion in Hazelwood ( the vote was 5-3), Justice Byron White declared that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, by that judicial norm the power to censor was virtually unlimited.

But that is changing thanks to our brand of rights-enhancing federalism by which states can often recognize a greater measure of rights than those accorded under federal law.


Enter the New Voices campaign (FB page), a student-powered grassroots movement spearheaded by the Student Press Law Center. The campaign’s objective is to “give young people the legally protected right to gather information and share ideas about issues of public concern. To that end, the Center has worked “with advocates in law, education, journalism and civics to make schools and colleges more welcoming places for student voices.”

Jonathan Peters, How a new campaign is trying to strengthen the rights of student journalists, Columbia Journalism Review (Feb. 19, 2016)

“New Voices USA is a network of state-by-state campaigns to pass anti-censorship legislation that will grant extra protections to student journalists. The movement is inspired by the success in North Dakota, where in 2015, the state legislature unanimously passed a bill that ensures the free-speech rights of journalism students in public schools and colleges.”

Ten States Expand Student Press Rights (statutory rights)

  1. North Dakota (public colleges & high schools)
  2. Colorado 
  3. Pennsylvania 
  4. Iowa
  5. Kansas
  6. Arkansas 
  7. California
  8. Oregon
  9. Maryland (public colleges & high schools)
  10. Illinois (public colleges & high schools)

“It’s anomalous that high school students in a number of states have greater statutory protection than college students. That is a product of the initial belief post-Hazelwood that the ruling could never realistically be applied at the collegiate level; the first wave of statutory fixes logically addressed itself only to K-12 schools. Little did anyone suspect that four circuits (so far) would embrace Hazelwood as applying at all levels of schooling, and so the succeeding generation has addressed that “rights gap.” — Frank LoMonte


  • Oregon (protection for public college students)
  • California (protection private college students)
  • New Jersey (pending legislation: public colleges & high schools)

 Ryan Tarinelli, U.S. Sen. Heidi Heitkamp speaks on the Senate floor in support of student free speech, New Voices, March 11, 2016 (YouTube video here)

→ American Society of News Editors Resolution in Support of Legal Protection for Student Journalists and Advisers (2016)

→ Society of Professional Journalists: Resolution No. 4: In support of enhanced protections for student journalists (2015)

Is downloading hacked Clinton e-mails a crime? Read More


Recess Appointments for Supreme Court Justices

Here’s a puzzle I was thinking about.  Suppose the President makes a recess appointment to the Supreme Court.  The appointment is challenged by someone with standing who cites Noel Canning.  During the pendency of the litigation, odds are that the challenged person would sit on the Court (you could conjure a scenario where there’s an adverse decision and no stay, but that seems doubtful).  Suppose at the end of that process, the remaining eight Justices rule that the recess appointment was invalid.  What would happen to the decisions made in which the recess Justice was the decisive vote?  Moreover, wouldn’t the recess appointment likely expire before the Supreme Court could even rule?  Would that make the case moot?

UPDATE: Here’s another problem. Wouldn’t all of the Justices have to recuse from deciding on the eligibility of someone that they had sat on cases with?

Rethinking the Political Economy of Automation

The White House recently released two important reports on the future of artificial intelligence. The “robot question” is as urgent today as it was in the 1960s. Back then, worry focused on the automation of manufacturing jobs. Now, the computerization of services is top of mind.

At present, economists and engineers dominate public debate on the “rise of the robots.” The question of whether any given job should be done by a robot is modeled as a relatively simple cost-benefit analysis. If the robot can perform a task more cheaply than a worker, substitute it in. This microeconomic approach to filling jobs dovetails with a technocratic, macroeconomic goal of maximizing some blend of GDP and productivity.

In the short run, these goals appear almost indisputable–the dictates of market reason. In the long run, they presage a jobs crisis. As Michael Dorf recently observed, even though “[i]t is possible that new technologies will create all sorts of new jobs that we have not imagined yet,” it is hard to imagine new mass opportunities for employment. So long as a job can be sufficiently decomposed, any task within it seems (to the ambitious engineer) automatable, and (to the efficiency-maximizing economist) ripe for transferring to software and machines. The professions may require a holistic perspective, but other work seems doomed to fragmentation and mechanization.

Dorf is, nevertheless, relatively confident about future economic prospects:

Standard analyses…assume that in the absence of either socialism or massive philanthropy from future tech multi-billionaires, our existing capitalist system will lead to a society in which the benefits of automation are distributed very unevenly. . . . That’s unlikely. Think about Henry Ford’s insight that if he paid his workers a decent wage, he would have not only satisfied workers but customers to buy his cars. If the benefits of technology are beyond the means of the vast majority of ordinary people, that severely limits the ability of capitalists and super-skilled knowledge workers to profit from the mass manufacture of the robotic gizmos. . . . Enlightened capitalists would understand that they need customers and that, with automation severely limiting the number of jobs available, customers can only be ensured through generous government-provided payments to individuals and families.

I hope he is right. But I want to explore some countervailing trends that militate against wider distribution of the gains from automation:
Read More


More Speech — A First Amendment Salon Occasional Paper: Bruce Johnson on Volokh & the “Speech Integral to Criminal Conduct” Exception

This is the first in the “More Speech” series of Occasional Papers to be circulated by the First Amendment Salon and the Floyd Abrams Institute for Freedom of Expression. The purpose of these More Speech papers is to introduce the practicing First Amendment bar to some new and important scholarly work that might be useful in litigation. Thus, we will invite a noted First Amendment lawyer to write a foreword to a particular scholarly article. By the same token, from time to time we will invite a noted First Amendment scholar to write a foreword to some important appellate brief, which we think might be of interest to the academic community. In this way, among others, we hope to enhance the communication between the practicing bar and the legal academy (and among journalists and activists, too).     

* *  * *

The Giboney Resurrection: A Civil Practitioner Considers the “Speech Integral to Criminal Conduct” Exception

By Bruce E. H. Johnson

Where does free speech end, and crime begin? This is an old legal question in American law; it stretches back to the beginnings of the Republic, and even earlier.[1]

Bruce Johnson

Bruce Johnson

Early on, the federal prosecutions under the Sedition Act and similar state libel prosecutions – such as People v. Croswell[2] defended by Alexander Hamilton – cited to Lord Coke and spoke “of a libel, as having a tendency to break the peace.” In such cases the courts confronted cause and possible effect (‘tendency”) to evaluate what defenses would be allowed to avoid criminal liability for allegedly libelous speech.

In recent years, however, at least since New York Times Co. v. Sullivan[3] and Garrison v. Louisiana,[4] defamation lawyers have generally focused on First Amendment protections from civil liability. During more than five decades, First Amendment litigation has mostly moved on, freed from its criminal law origins. In the process, civil liability for free speech activities has become detached from the historic criminal law principles that were the subject of debate and litigation in the 1790s and thereafter. This is because, recognizing that the “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive,’”[5] Sullivan and its progeny developed constitutional rules applying free speech protections.

In his new article[6] UCLA Law Professor Eugene Volokh reminds us that, excluding modern defamation law, this “tendency” analysis remains key in evaluating unusual governmental limitations on free speech protections. Indeed, under the Roberts Court, a new category of unprotected speech has quietly been added to the historic list of First Amendment “exceptions” recognized in Chaplinsky v. New Hampshire.[7]

As Professor Volokh notes, this is a recent development, and potentially very troubling. When the Supreme Court decided United States v. Stevens[8] and United States v. Alvarez,[9] First Amendment advocates were generally pleased. In both cases, citing the First Amendment, the Court struck down the application of a federal criminal law to activities that were plainly speech or speech-related.

Professor Eugene Volokh

Professor Eugene Volokh

Neither case presented great facts.[10] Stevens involved so-called “crush videos,” while Alvarez construed the constitutionality of the Stolen Valor Act, a federal law that criminalized false statements about having a military medal, with the Justices voting 6-3 to hold the law unconstitutional as applied. In his plurality opinion, Justice Anthony Kennedy ruled that “[t]he Government has not demonstrated that false statements generally should constitute a new category of unprotected speech.”

But, in both cases, the Court, when listing the usual collection of well-recognized Chaplinsky “categories,” added “a long-dormant and little defined First Amendment exception: the exception for ‘speech integral to criminal [or tortious] conduct,’” and included a citation to Giboney v. Empire Storage & Ice Co.[11] as the leading case supporting that exception. In another decision, Sorrell v. IMS Health Inc.[12] – a “commercial speech” case holding unconstitutional a Vermont law that “restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors” – the Court also cited Giboney in listing the categories of speech that were excluded from the First Amendment.[13]

According to Professor Volokh, Giboney “hadn’t been cited by the Court at all from 1991 to 2005,” but since 2006, “the Court has cited Giboney six times” and its exception for speech integral to criminal conduct “is now a standard item on lists of First Amendment exceptions.” In his view, the reliance on Giboney is a product of the Roberts Court. That is, both Chief Justice Roberts and Justice Scalia sought to avoid “categorical balancing” tests and instead embraced a constitutional doctrine supposedly rooted “in history and tradition.” With apologies to Van Wyck Brooks,[14] it is clear that Giboney was attractive because it offered a usable past to several Justices with originalist tendencies. Read More


FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

* *  * * 

Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

* * * * 

According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply Read More


Roundup: Law and Humanities 10.13.2016

In somewhat of an October surprise, the Swedish Academy has announced the award of the Nobel Prize for Literature to singer-songwriter Bob Dylan. Law and humanities mavens, take note: scholars and commentators have been examining Laureate Dylan’s work for links to the law for some time.

The New York Times’ Adam Liptak surveyed the uses of Bob Dylan lyrics in judicial opinions here, listing some here.

Some lawprofs have written about Mr. Dylan’s use of law and legal themes. Here are some examples.

Adam Gearey, Outlaw Blues: Law in the Songs of Bob Dylan, 20 Cardozo Law Review 1401 (1998/1999).

Matthew McNeil, The First Amendment Out on Highway 61: Bob Dylan, RLUIPA, and the Problem with Emerging Postmodern Religion Clauses Jurisprudence, 65 Ohio State Law Journal 1021 (2004).


See also music scholar James Dunlap, Through the Eyes of Tom Joad: Patterns of American Idealism, Bob Dylan, and the Folk Protest Movement, 29 Popular Music and Society 549 (2006).


The Fordham Urban Law Journal devotes an entire issue to Bob Dylan and the law (38 Fordham Urban Law Journal 2010-2011). The issue includes (complete with poetic titles):

Samuel J. Levine, Foreword, at 1267.

Louise Harmon, Bob Dylan on Lenny Bruce: More of an Outlaw Than You Ever Were, at 1287.

Renee Newman Knake,  Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan, at 1303.

Randy Lee, Bob Dylan’s Lawyers, a Dark Day in Luzerne County, and Learning to Take Legal Ethics Seriously, at 1323.

Alex B. Long, The Freewheeling’ Judiciary: A Bob Dylan Anthology, at 1363.

Alex Lubet, Arrested Development: Bob Dylan, Held for Questioning Under Suspicion of “Autism,” at 1385.

Michael Perlin, Tangled Up in the Law: The Jurisprudence of Bob Dylan, at 1395.

Laurie Serafino, Life Cycles of American Legal History Through Bob Dylan’s Eyes, at 1431.

Abbe Smith, “No Older ‘N Seventeen”: Defending in Dylan County, at 1471.

Richard H. Underwood, When the Law Doesn’t Work, at 1495.

David M. Zornow, Dylan’s Judgment on Judges: Power and Greed and Corruptible Seed Seem To Be All That There Is, at 1511.


Idealawg discusses some of Mr. Dylan’s lawprof fans here.



Presidential Electors Should Take A Vow of Silence

This campaign is strange for all sorts of reasons, but one aspect that I want to comment on is the chatter by certain presidential electors that they may not vote for the candidate that carries their state or district. Journalists have been doing a good job of finding some (mostly Republican, but also at least one Democratic) disgruntled electors who want to vote for Mike Pence or Joe Biden or someone else.

These people should keep quiet.  While they have the constitutional right to vote for anyone eligible to be President, they have no special qualifications to make that judgment.  Do you know who your presidential electors are?  Of course not.  Almost anyone that a party puts forward can be an elector, except for people who hold a federal office.  Many of them are complete dunderheads.  It’s just one of the many reasons why the Electoral College should be repealed, though there is every indication that that system will limp on for four more years.