Final Conclusion on the ERA

After researching the issue at some length, my conclusion is that Congress should not consider ratification of the ERA until such time as there is no doubt that 3/4ths of the states have ratified the amendment. Only then would Congress be acting responsibly if it decided that the time limit for ratification (imposed in the 1970s) should be repealed.

What I mean by this is that the rescissions that some states issued to their ratifications should be deemed valid. Thus, supporters of the ERA must either get some of those rescissions rescinded or get enough other states to ratify such that the rescissions become irrelevant.

I reach this conclusion for two reasons. First, ratification of the ERA will not be seen as legitimate if there is an open question about how many states ratified AND a question about whether the ratifications after the expiration of the timeline are valid. Second, there is no consistency whatsoever in saying that states cannot withdraw their yes vote for an amendment but that Congress can change the timeline for ratification. Either both decisions should be final (a plausible view) or neither (equally plausible). Saying that one is final but the other is not cannot, in my view, be justified.

What I have to decide now is whether I’m going to write all of this up in a paper or not. Part of me thinks that I should, but part of me wonders whether there is any point in doing so until another state ratifies. Right now, everybody agrees that 3/4ths of the states have not ratified the ERA. Perhaps that will never change.


The Lottery Docket

I just wanted to flag a terrific new article in Michigan Law Review by Daniel Epps and William Ortman.  Here is the Abstract

We propose supplementing the Supreme Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court’s free hand in agenda-setting has obvious benefits, but drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit courts that their decisions are unreviewable — and thus unaccountable — in unimportant cases. And it passes over many cases that are important in a less narrow sense. The Court uses the existence of a circuit split to identify cases as important, but splits are merely proxies for, not measures of, importance. While many issues selected through the certiorari process are important, not all important issues are selected by certiorari.

More fundamentally, we question the premise that only “important” cases deserve the Court’s attention. The legal system would be improved if every Term, the Supreme Court were forced to decide some unquestionably unimportant cases — run of the mill appeals, dealing with the kinds of legal questions that the lower courts resolve every day. Over the long run, a lottery docket would offset the pathologies of the certiorari system without depriving the Court of its ability to resolve questions that have divided the lower courts.


Terrett v. Taylor

In a prior post I talked about the Supreme Court’s decision in Terrett v. Taylor, which in a sense was the first federal case that assessed church/state relations. Taylor has many fascinating details, and I thought that I would elaborate.

Virginia, like many other colonies, had an established church. In 1776, Virginia enacted a statute that disestablished its church but maintained that all of the church’s property would remain church property. Twenty plus years later, though, the state enacted a law asserting that the state actually owned the church’s property.

As a private lawyer, Bushrod Washington advised the Church that any revocation of their land grants would be unconstitutional. In part, this was an argument sounding in property rights, but he addressed the thought that letting the church keep its property after its disestablishment violated the Free Exercise Clause of the Virginia Declaration of Rights. Rejecting this claim, he said that the free exercise issue “cut both ways.” (I was surprised to see this phrase because I thought this as a modern expression, but evidently it is not.) Washington pointed out that the free exercise of the church would be adversely impacted by withdrawing property that was important for its financial well-being, though you could also say that the free exercise of other churches was impeded by the special property privileges of the Episcopal Church. He also stated that the statute that secured the church’s property in 1776 possessed a special presumption of constitutionality because it was contemporaneous with the Declaration of Rights.

The Supreme Court, in an opinion by Justice Story, agreed with these conclusions and held the Virginia law taking away the church property unconstitutional. The Court relied on no federal constitutional provision to strike down this law. Instead, Taylor invoked the “great and fundamental principle of  a republican government, the right of citizens to the free enjoyment of their property.” (In short, a natural law justification that would never pass muster today.) Justice Story also opined that the 1776 statute guaranteeing church property did not violate the Virginia Declaration of Rights; an odd position for a federal court to take, though to be fair the distinctions between state and federal authority were not so clear in 1815.

On the latter point, I am leaning in the direction of saying that Washington must have contributed his earlier analysis to Story’s opinion. We’ll see if I can learn more


Trump as Litigator-in-Chief and Other Real World Stories

Donald Trump (credit: Business Insider)

Donald Trump (credit: Business Insider)

Miriam Cherry and I are thrilled to announce release of our new book, CONTRACTS: A REAL WORLD CASEBOOK.  We spent the last decade ripping cases from the headlines to show students how classic cases and principles that seem dusty still control today’s contract disputes they hear about.  Seeing the old and the new together engages students and we hope contracts teachers will consider this book.

We pulled this together after years of bringing contracts in the news into our classrooms, onto this blog, into a Cambridge U paperback and now, formally into a casebook that’s both fresh and familiar.  For example, thanks to our country’s litigator in chief, the litigious Donald Trump, students tomorrow morning can work out how ancient principles on liquidated damages control current events, as Jennifer Taub explains over at Slate.

Trump shows up in our casebook multiple times, though we omitted a few stories I’ve written on his legal foibles simply to avoid too many encounters.  But below is a reprise of one I wrote a few years ago that did make the cut.  In our casebook, we turned this example into a problem and then excerpted the relevant case precedents, such as the Kel Kim case discussed below along with the classics Taylor v. Caldwell and Krell v. Henry.  Skimming it and comparing it what we put in the casebook gives a sense of our process which, above all, was fun, and the students can tell.  Read More


FAN 183 (First Amendment News) Pushback: Seidman’s “Can Free Speech Be Progressive?” article draws critical response

Declining support for unfettered debate among politicians, academics, and the public doesn’t bode well for the future of free speech.  — J.D. Tuccille, March 19, 2018

There’s dissent in the air — from the Left, the Right, and from Libertarian quarters, too. Everybody is getting ever more worked up about free speech in America.

J.D. Tuccille

Donald Trump wants to revive old defamation laws; some on the Left want to amend the First Amendment; some on the Right want the government to regulate violent movies and video games; many college administrators appear determined to abridge the First Amendment; college students gather en masse to silence speech that offends them; First Amendment scholars ask What’s Wrong with the First Amendment?; and Libertarians, well, they can never have enough free-speech freedom.

Make no mistake: the future of the First Amendment hangs in the balance as never before.  This is no “the sky is falling” claim. Rather, it is an observation on our times. No, not like the late 18th century, or WWI, or the McCarthy Era. Not at all. But we are in a state of transition. Take heed: the goal lines are shifting.

Indicative of that shift is a headline over at Reason.com: “Trump’s Anti-Speech Agenda Gets a Boost From Lefty Lawyers and Academics.” Among other things, it is offered up as a sort of reply to something I posted last week: Professor Louis Seidman’s forthcoming Columbia Law Review article titled Can Free Speech Be Progressive?  J.D. Tuccille authored the article. He is a former managing editor of Reason.com and current contributing editor. Here are some excerpts from his article:

  • “We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it’s used by the “right” people for their favored goals, and the country’s leading civil liberties organization is suffering an internal revolt by staffers who oppose “rigid” support for free speech protections.”
  • “[I]f you’re an academic with expertise in constitutional law, and you have months to watch a populist politician who commands the power of the presidency fulminate about punishing those who criticize him, what do you do? If you’re Georgetown Law’s Louis Michael Seidman, you suggest that the president might be on to something.”
  • “In 2016, [Professor Seidman] wrote for the Nation, ‘Would the election of Donald Trump threaten the sanctity of the United States Constitution? We should be so lucky.’ In fact, Seidman has long been an advocate for dumping the Constitution and its protections in their entirety. He just thinks that Trump is the wrong vehicle.”
  • “And Seidman isn’t alone in arguing from academia that free speech is overrated. His paper favorably quotes Laura Weinrib of the University of Chicago Law School, author of The Taming of Free Speech: America’s Civil Liberties Compromise. Weinrib complained in a Los Angeles Times op-ed last summer that “free speech has served to secure the political influence of wealthy donors,” while “labor’s strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses.”
  • “Last fall, about 200 of the [ACLU’s] staff members signed a letter objecting to the groups’ ‘rigid stance’ on the First Amendment. The letter was characterized by former ACLU board member Michael Meyers as ‘a repudiation of free-speech principles.'”
  • “[I]ntolerance has pretty clearly become a dominant theme at colleges, where the likes of Seidman and Weinrib teach that free speech is overrated and important primarily as a tool to be reserved for the right ideas.”

There is more, much more, but you’ll need to read the full article to discover what you missed.

Court Reporters’ assessments of arguments in California abortion-speech law case

Yesterday the Supreme Court heard oral arguments in National Institute of Family and Life Advocates v. Becerra.

Issue: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the F Fourteenth Amendment.

Facts: This from Amy Howe over at SCOTUSblog: “The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help.”


  • Michael P. Farris argued on behalf of the Petitioners.
  • Jeffrey B. Wall, Deputy Solicitor General, Department of Justice, argued on behalf of the United States, as amicus curiae, in support of neither party, and
  • Joshua A. Klein, Deputy Solicitor General, California, argued on behalf of the Respondents

Commentators — Consensus: Justices skeptical of constitutionality of California law 

  • Adam Liptak (NYT): “A California law that requires ‘crisis pregnancy centers’ to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday. . . . Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”
  • David Savage (L.A. Times): “The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers — including those that are faith-based — to notify women that the state offers subsidies for abortion. . . . [M]ost of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law. . . . Tuesday’s case marked the third time in recent months that the justices weighed a conservative group’s claim that a liberal state law amounts to unconstitutional ‘compelled speech.'”
  • Nina Totenberg (NPR): “Supreme Court justices on both sides of the ideological spectrum expressed skepticism about California’s ‘truth-in-advertising’ law requiring anti-abortion clinics to more fully disclose what they are.”
  • Robert Barnes (Washington Post): “Supreme Court justices on Tuesday indicated that a California law requiring antiabortion pregnancy centers in California to notify women that the state provides free or low-cost health care, contraception services and abortion, could violate free speech rights. . . . [Justice Kennedy’s questions] were almost uniformly hostile to the law, and he was even short with other justices who seemed to defend it.”


EXCERPTS from aruments in California abortion-speech law case Read More


Contract Interpretation 2.0: Not Winner-Take-All But Best-Tool-For-The-Job

In a centuries-old debate among contracts scholars, one group supports a presumption favoring a text-centered approach to the interpretation of a written agreement — the plain meaning taken from the four corners — while opponents urge a broader understanding of context — what the parties intended and the circumstances of their negotiation. The contending positions have so hardened that, in a jarring juxtaposition my new Essay will reveal, recent academic classifications of the same state laws are exactly opposite to each other: contextualists classify certain states as contextualist that textualists say are textualist!

Yet despite the persistence of acute polarization, the author also documents — and applauds — promising trends in the literature toward hybridization and compromise, a search for factors to guide the selection of interpretive tools rather than putting some off limits or setting up default rule presumptions. While scholars have thus long obscured a common-sense reality, a new wave of research is making it clearer to all sides that text and context are both useful, depending on the details of different jobs.

More modern, advanced, and sensible, this new view of contract interpretation replaces a stubborn “winner-take-all” approach to the debate with a flexible and practical “best-tool-for-the-job” approach. To illuminate its importance and value — call it contract interpretation 2.0 — my new Essay turns to Warren Buffett’s contracting philosophy and practices. The famous investor and businessman is also a polyglot teacher, and his approach to contracts, especially acquisition agreements and employment arrangements, illustrates the imperative of using the right tool for the job.


The Hidden Hand

The great mystery of the Marshall Court is how the Justices worked together. Because most of those opinions were unanimous and there are few internal documents available on the Court’s deliberations, scholars often fall back on the thought that the author of any given opinion (usually Chief Justice Marshall or Justice Story) supplied all of the reasoning. In some sense we know that cannot be true, but how to prove that?

In writing about Bushrod Washington, I hope to answer that question. Thus far, I have two clues. One is the Justice’s journal that is in the Chicago History Museum. Here you can find draft opinions for a few Supreme Court cases during the 1820s, and I can use those notes as a basis for comparison with the final product.

The second clue relates to an opinion written by Justice Story (Terrett v. Taylor). Taylor is a very interesting case (I’ll say more about it in another post) that addressed the legality of a Virginia statute that sought to strip the state’s Episcopal Church of its property. The Court’s opinion finding the statute unconstitutional can be compared to an opinion that Washington wrote as a private attorney about the issue in the 1790s. Story’s opinion and Washington’s earlier analysis are quite similar in many passages. I’m not sure yet whether this is a coincidence or indicates that Washington (who knew a lot about the matter) contributed significantly to Story’s draft.

Anyway, it’s another piece of the puzzle. The search for more continues.


John Bingham on C-Span3

This Saturday at 4:50PM, C-Span3 will air my 2013 talk on John Bingham that was hosted by the National Constitution Center. It’s part of a weekend set of special programming on the Civil War and Lincoln.


Vanderbilt Law Review, Volume 71, Number 2

The Vanderbilt Law Review is pleased to announce the publication of our March 2018 issue:


Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018).

Tara Leigh Grove,The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465 (2018).

Thomas W. Merrill, Interpreting an Unamendable Text, 71 Vand. L. Rev. 547 (2018).


Matthew D. Cain, Jill Fish, Steven Davidoff Solomon, & Randall S. Thomas,The Shifting Tides of Merger Litigation, 71 Vand. L. Rev.  (2018).603


Richard Turner Henderson, Sink or Sell: Using Real Estate Purchase Options to Facilitate Coastal Retreat, 71 Vand. L. Rev. 641 (2018).

Alexandra Michelle Ortiz, Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee, 71 Vand. L. Rev. 681 (2018).