Taking Delight in the Senate Rules

I’ve always been fascinated by the arcane rules of the Senate. Here is one worth pondering:

(a) Notwithstanding any other provision of the rules, when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o’clock postmeridian unless consent therefor has been obtained from the majority leader and the minority leader (or in the event of the absence of either of such leaders, from his designee). The prohibition contained in the preceding sentence shall not apply to the Committee on Appropriations or the Committee on the Budget.

Basically, this means that Senator Schumer could withhold his consent and force Judge Kavanaugh’s confirmation hearing before the Judiciary Committee to end each day two hours after the Senate convenes (or at 2PM), whichever comes first.

What is the purpose of the rule? I guess it was supposed to ensure broad attendance on the floor after a certain time of day if necessary. In practice, though, consent for ongoing committee meetings is almost always given.


FAN 196.1 (First Amendment News) Summertime: Free Speech Podcasts to Check Out

It’s summertime and the livin’ is easy (channeling Ella Fitzgerald & Janus Joplin). So, if you’re driving to the beach, or at the beach under an umbrella, or in a hammuck watching the stars, why not plug into a mind-opening podcast on free speech? Sound inviting?  If so, check out these great podcasts (all free!):

  1. Fire in a Crowded Theater (Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment.)
  2. Street (In this episode, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag.
  3. Crush (Ken White and guest Marc Randazza examine the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment._

  1. The Great Disruption: Part I: The Printing Press and the Viral Reformation (In episode 10, we cover the invention, spread, and effects of the Gutenberg printing press:
  • What significance did this new technology have for the dissemination of knowledge and ideas?
  • Why was the printing press instrumental in helping a German monk and scholar break the religious unity of Europe?
  • What happened when new religious ideas raged through Europe like wildfire?
  • And did Martin Luther’s Reformation lead to religious tolerance and freedom, or persecution and censorship?)

2.  Expert Opinion: Christime Caldwell Ames (Our last stop in the Middle Ages is an interview with professor Christine Caldwell Ames, who is an expert on medieval heresy and inquisition in Judaism, Christianity, and Islam. The discussion highlights the similarities and differences between Christianity, Catholic and Orthodox, Judaism, and Islam when it comes to defining and policing orthodoxy.)

3.  The Hounds of God — Medieval Heretics & Inquisitors (From the High Middle Ages, Europe developed into a “persecuting society,” obsessed with stamping out the “cancer” of heresy. But questions about how this was accomplished — and the consequences of these developments — abound)

  1. Supreme Court Review: Kennedy, Kavanaugh, and “weaponizing the First Amendment” (On this episode of So to Speak, we discuss President Donald Trump’s nomination of Brett Kavanaugh to the United States Supreme Court and what it might mean for the First Amendment. We also review Anthony Kennedy’s legacy, the free speech cases from this past Supreme Court term, and Justice Elena Kagan’s contention that some of her colleagues are “weaponizing the First Amendment.” The guests on today’s show are: Paul Sherman: Senior attorney, Institute for Justice Bob Corn-Revere: Partner, Davis Wright Tremaine Walter Olson: Senior fellow, Cato Institute)
  2. ‘HATE’ with Nadine Strossen (On this episode of So to Speak, we welcome back to the show former ACLU president and New York Law Professor Nadine Strossen. She is the author of “HATE: Why We Should Resist It With Free Speech, Not Censorship.” In this new book, she argues that America’s broad protections for hateful speech are a good thing, and that efforts to censor such speech has historically backfired or been proven ineffective.)
  3. Most memorable FIRE cases (In this episode of So to Speak, we take a trip down memory lane. We are joined by FIRE’s Greg Lukianoff, Samantha Harris, and Will Creeley to discuss memorable cases from FIRE’s 19-year history. You can watch a video of this conversation on FIRE’s YouTube channel(youtube.com/thefireorg).



The Birth of Law Reports

Published law reports are an essential component of a common-law system. Without knowing what a prior case held or said, how can anyone follow precedent? But the system of law reports that we have evolved in a haphazard manner. Until well into the nineteenth century, reports were put together by private individuals (sometimes on their own and sometimes hired by a court) or by the judge. As a result, many of the law reports that we have from early American cases are incomplete or missing.

One of Bushrod Washington’s many contributions was in getting more reports done. As a private practitioner, he published volumes on the opinions of the Virginia Supreme Court based on his notes. As a Supreme Court Justice, he worked to get reports of his circuit cases published in a more diligent manner than many of his colleagues.

Of course, there was a selfish aspect to this. Disseminating his own opinions increased Justice Washington’s influence. There was also selective bias at work. In my research, I have found some notes that Washington made for the preparation of circuit reports, where he explains how his oral statement about the case should be modified prior to publication. Sometimes he suggested revisions to clarify what was said, but sometimes he did so to correct an error he felt he had made.

There are also one set of cases that Washington never reported–his trials involving the Alien and Sedition Acts. This omission is probably not an accident, given how controversial those cases were. This is on reason why taking control of the reports away from the courts was a sound change.


ROUNDUP: Law and Humanities 07.11.18

News from the world of law and humanities.

Some Conferences, Calls for Papers, and Calls for Panelists


The Critical Legal Conference 2018 takes place at The Open University, Milton Keynes, UK, September 6-8, 2018. Registration is now open. More here at the Conference webpage.


The LSAANZ (Law and Society Association of Australia and New Zealand) Conference 2018 will take place December 12-15, 2018, at the University of Wollongong. 

The call for abstracts is open until July 20, 2018. 



Call for Contributions: New Open Access Peer-Review Website

The new open access website https://hedgehogsandfoxes.org/ is issuing a call for essays, articles, interviews, book reviews, teaching resources, photographs, poems, and other materials related to the study of law and the humanities (broadly defined). All publications are peer-reviewed. As you can see, we are just getting started and will be making changes to the design of the website over the next few weeks. If you are interested in publishing with us, please keep us in mind. For more information, or to inquire about publication, please send an email to a member of the Board:

ccorcos at lsu.edu

sghosh01 at law.syr.edu

david.papke at marquette.edu

csharp at uow.edu.au



Read More


FAN 196 (First Amendment News) Special Issue: 20 New or Forthcoming Books


        Marvin Kalb (Sept. 25,  2018)         Lukianoff & Haidt (Sept. 4, 2018)          Cynthia Chris (Jan. 2019)


Banned Books Week 2018, the annual celebration of the freedom to read, will be held September 23 – 29. The 2018 theme, “Banning Books Silences Stories,” is a reminder that everyone needs to speak out against the tide of censorship.

For more information, click here












Eric Robinson(Dec. 12, 2018)              Larry Brimner (Oct. 9, 2018)               Dan Bernstein (Jan. 1, 2019)












Christian Cotton & Eric Arp, eds. (Nov. 13)  Kristie Byrum (Aug. 15, 2018)  Mike Ananny (May 4, 2018)


Bollinger & Stone, eds. (Dec. 3, 2018) Read More


Copyright in Visual Art

I want to flag a terrific new article by Amy Adler on copyright law and visual art, entitled Why Art Does Not Need Copyright. Here is the Abstract:

This Article explores the escalating battles between visual art and copyright law in order to upend the most basic assumptions on which copyright protection for visual art is grounded. It is a foundational premise of intellectual property law that copyright is necessary for the “progress” of the arts. This Article demonstrates that this premise is flatly wrong when it comes to visual art. United States courts and scholars have come to understand copyright law almost universally in utilitarian terms; by this account, the reason we grant copyright to authors is to give them economic incentives to create culturally valuable works. But legal scholars have failed to recognize that their paradigm makes no sense when applied to visual art, one of the highest profile and most hotly contested fields in intellectual property law. This is because scholars have failed to take into account the single most important value for participants in the art market: the norm of authenticity, which renders copyright law superfluous. The fundamental assumption of copyright law—that the copy poses a threat to creativity—is simply not true for visual art. By juxtaposing copyright theory with the reality of the art market, this Article shows why copyright law does not—and cannot—incentivize the creation of visual art. In fact, copyright law, rather than being necessary for art’s flourishing, actually impedes it.


Bushrod Washington and the Nuremberg Principle

I came across this interesting passage in a jury charge given by Justice Washington, which speaks for itself in light of so many crimes that have been committed since:

The only remaining question of law, which has been raised in this cause, is, that the prisoner ought to be presumed to have acted under the orders of his superior officer, which it was his duty to obey. This doctrine, equally alarming and unfounded, underwent an examination and was decided by this court, in the case of general Bright. It is repugnant to reason and to the positive law of the land, No military or civil officer can command an inferior to violate the laws of his country, nor will such command excuse, much less justify the act. Can it be for a moment pretended that the general of an army, or the commander of a ship of war, can order one of his men to commit murdcr, or felony ? Certainly not. In relation to the navy, let it be remarked, that the 14th section of the law, for the better government of that part of the public force, which enjoins on inferior officers, or privates the duty of obedience to their superiors, cautiously speaks of the lawful orders of that superior.

Disobedience of an unlawful order, must, of course, be dispunishable, and a court martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. I do not mean to go further than to say, that the participation of the inferior officer in an act which he knows or ought to know to be illegal, will not be excused by the order of his superior.


The Crickets Are Chirping

As we await the President’s nomination for the Supreme Court, I thought I would just note that the President has not referred to the Bill of Rights at all in 2018. Not once. I also went back through his Twitter feed and found that he has never mentioned the Bill of Rights in any tweet he’s ever written, going back to when he started his account as a private citizen. Just saying.


FAN 195.1 (First Amendment News) Institute for Free Speech Releases the Free Speech Records of Judges on Trump’s Short List

The Institute for Free Speech has just released The Free Speech Records of Judges on Trump’s Short List.

Here is the introduction to its study:

“With Justice Anthony Kennedy retiring, President Trump has a second opportunity to appoint a justice to the Supreme Court.”

“As with the the previous nomination, the Institute for Free Speech seeks to analyze the records of potential nominees to educate the public on where these justices stand on First Amendment issues.”

The “Institute for Free Speech analyses on the free speech records of some of the judges on President Trump’s list of potential nominees. The Institute for Free Speech will continue to update this page with additional analyses until a nominee is named.”

Again, the records of the potential nominees as compiled by the Institute can be found here.