When constitutional law scholar and prolific blogger Josh Blackman visited CUNY School of Law this week, he was met with a chorus of “shame” from protesters.  The protesters, armed with signs labeling Blackman as a white supremacist and claiming that his legal analysis was “lazy and wrong,” talked over him in a coordinated way from the front of the room.  The protesters seemed to outnumber audience members, perhaps because prospective audience members were concerned about the stigmatizing effects of attending, given that the protesters also turned their displeasure on audience members.  When the protesters finally let Blackman speak, after admonition from an administrator, he began to engage an audience member about whether legal objectivity is a myth.  The existence of legal objectivity, although not the subject of the talk, was an important meta question, given that the protesters likely do not believe in the full breadth of our constitutional guarantee of freedom of speech, which applies fairly neutrally to everyone, despite the offensiveness of the viewpoint.

The irony is, of course, that these protesters also benefit from our free speech regime, which protects their right to protest, even when their underlying sentiment, as one expressed, is “Fuck the law.”  The way we have drawn lines to resolve the tension between the right to speech and the right to protest speech is the most sensible approach, except for those truly opposed to rule of law and process-based democracies.  Given that law schools have an intellectual and professional mission to educate students in civil, civic discourse and to use logic and argumentation in a restrained, adversarial way, the fact that some CUNY Law students oppose the lines we have drawn is deeply concerning.  Below, I will outline where the right to protest stops being protected speech and starts becoming conduct, and why this line benefits us all.

Continue reading “Using Speech to Disrupt Speech – Drawing Sensible, Constitutional Lines” →

Last month, The Atlantic, a nonpartisan magazine that provides literary and cultural commentary, hired columnist Kevin Williamson, known for his conservative views and sharp writing.  This decision sparked outcry among those who believed his views, especially on gender issues, to be extreme and bigoted.  Twitter campaigns were launched to convince The Atlantic to fire Williamson, including the #FireKevin hashtag used by the abortion rights group Naral Pro-Choice America.  This week, The Atlantic fired Kevin Williamson.

Editor-in-chief Jeffrey Goldberg explained that while The Atlantic conceives of itself as a “big tent,” a recently uncovered podcast in which Kevin Williamson had previously spoken about hanging women who have abortions was “callous and violent,” and runs contrary to The Atlantic’s tradition of respectful, well-reasoned debate, and to the values of our workplace.”

This firing decision has begun a new round of debates, often (but not exclusively) with a right-left political valence, about which ideas should be accepted and facilitated in mainstream discourse.  The three major ways in which the issue has framed – the intellectual diversity argument, the bigotry against women angle, and the de-platforming angle – all have limitations.  Getting the framing of this issue correct is important to clarifying whether The Atlantic’s decision was appropriate.

Continue reading “On the Framing of Kevin Williamson’s Firing” →

Although Supreme Court cases often leave room for various interpretations, seldom does the Court take a case solely to instruct lower courts on the best way to read a prior opinion.  In Hughes v. United States, the Supreme Court will consider both how to read each opinion in the prior case of Freeman v. United States and how to determine which opinion is controlling.  By resolving how to handle fractured cases with no majority rationale, Hughes will also offer meta guidance on how to read cases more generally.

Litigants and scholars have offered various solutions for determining the precedential effect of non-majority opinions.  This post will detail those solutions, which entail the finest, purest legal logic in a fantastically meta case.  My current thinking is that the Court should apply the “logical subset” rule to govern fractured opinions in most cases, except if the logical subset rule produces absurd results.

Continue reading “The Meta Logic of Hughes v. United States and How to Get Guidance From Fractured Supreme Court Opinions” →

A few days ago, I wrote an open letter to the American Civil Liberties Organization, a group I have admired, about their abandonment of civil liberties in favor of civil rights and partisan goals.  Politicizing fundamental civil liberties, enshrined in the Constitution, places these liberties in jeopardy.  Today, I read an excellent Twitter thread essentially making the same claim about the National Rifle Association – that politicizing gun rights has rendered these liberties just another part of the culture wars.  I agree with that sentiment.  The NRA should not have advanced its cause only on one political front, but should also have argued that police brutality harms minorities’ ability to exercise open carry, for example.

A deep cynicism has undermined the view that civil liberties should be neutrally applied.  This cynicism permeates our advocacy groups and our educational systems.  I understand this cynicism, but now is the time for its opposition.  We can all hold each other accountable for a more even-handed, consistent appreciation of our liberties.

Continue reading “A Return to A Liberties-Neutrality Mindset” →

Dear American Civil Liberties Union:

I am a law professor who teaches Torts, Speech Torts, and Criminal Procedure.  I am also a longtime fan and donor.   I even met with one of your policy staffers in Ohio to discuss possible collaborations (he was highly competent, principled, and conscientious about free speech).   I write, in all sincerity, because I believe your current organizational priorities are undermining the very credibility that earned you prominence.  I think you are losing sight of the meaning of the term civil liberties.

Continue reading “An Open Letter to the ACLU, on Civil Liberties” →

This month, two women have come forward who credibly claim to have engaged in sexual relationships with a married Donald Trump, prior to his becoming President.  These women cannot speak about the affairs because of non-disclosure agreements.  Fitness model Karen McDougal and pornography actress Stephanie Clifford (aka Stormy Daniels) have both sought declaratory judgments invalidating their NDAs.  Their lawsuits speak of their being “silenced,” and commentators discussing the cases frame them as involving free speech.

Although states can and do void some NDAs as violations of public policy, this “free speech” framing elides important distinctions between government suppression of speech and voluntary decisions to exchange one’s ability to speak for compensation.  Courts should be cautious about interfering with this right to contract by invoking vague notions of free speech.

Continue reading “Thoughts on Enforcing Non-Disclosure Agreements” →

Most law students know that creating an outline for a law school class is a useful tool.  However, many students aren’t aware of the precise reasons that outlining is useful.  As a result, students create outlines that don’t serve them particularly well.

There are two main purposes for outlining.  An optimal outline helps a student (1) better understand how the material is organized as a coherent whole and (2) better apply the material to new hypothetical situations.  Throughout the semester, you learn the information in isolation. True understanding comes from appreciating how all of the rules and principles fit together, and how the cases illustrate the legal principles that logically flow from one to the next in an organized system.  Outlines are great for ensuring true understanding.

Here are some tips, with examples, for how to optimize your outline.

Continue reading “How to Create a Great Law School Outline” →

Free speech has become so politically polarized that I fear that the First Amendment is losing its legitimacy as a non-partisan tool.  Without consideration of ultimate viewpoint, the First Amendment safeguards dissenting voices, promotes expressive autonomy, and fosters both the search for truth and genuine participation in our democracy.  Some increasingly argue, however, that the First Amendment has become a Lochnerian de-regulatory political tool, while their opponents believe that respect for the First Amendment has waned simply because it has become politically inconvenient.

Continue reading “Essay: “Good Orthodoxy” and the Legacy of Barnette” →

I tell my law students that you cannot get through law school without knowing your general approach to  the rules versus standards debate.  So many legal questions turn on whether you prefer the (1) simplicity, clarity, predictability, and fairness of rules, or the (2) flexibility, complexity, and justice of standards.

Rules create bright-line tests that apply exactly the same to everyone, in a fair and predictable way.  The problem, however, is that rules don’t allow for the case-by-case analysis of standards, which provide more flexible, balancing-type approaches that give judges discretion to determine what’s right in a given situation.  Rules make things fair; standards may make them just.  Rules may also be over- or under-inclusive, sweeping up people into the rule who don’t belong, or not including people in the rule who should belong there.

Continue reading “Are You a Rules Person or a Standards Person? (Quiz Included)” →

Arya Stark purchased a knee brace directly from the manufacturer, Lannister Industries.  Arya bought the brace so that could keep her knee stable while practicing her sword fighting.  The knee brace, which was sold for the low cost of $7.75, came with instructions on how to use it, which included the language, “Do not use this knee brace when making sudden, choppy movements.”  Arya, who believed herself to be a very fluid sword fighter, knew she would not make any jerky movements while practicing sword fighting.

Arya did not examine the knee brace carefully, so she did not notice that the knee brace is designed to slip all the way down the leg when sudden movements are made.  Two weeks after purchasing the knee brace, Arya was practicing her sword fighting when her father, Ned Stark, the most honorable man alive, unexpectedly knocked on her door.   She jerked suddenly, startled by the door, and the knee brace fell off her leg.  She tripped over the knee brace getting to the door and broke her leg in two places, requiring several surgeries.  Because of the injury, Arya would never be strong enough to sword fight again.

Arya sued Lannister Industries for compensatory damages.  Discuss the possible claims that Arya could assert, how the court would analyze those claims, and what affirmative defense Lannister Industries could use to defend against Arya’s claims.  Also discuss what damages Arya could be awarded if any of the claims succeed, and how a court will calculate those damages.

Continue reading “Products Liability Exam Hypo” →