PrawfsBlawg

JOTWELL published two essays on Elizabeth Chamblee Burch’s The Pain Brokers. Anthony Sebok (Cardozo) reviewed it for the Torts Section, while Seth Endo (Seattle) reviewed it for Courts Law.

The book was the subject of last month’s Prawfs symposium.

To Paul and to everyone who sent congratulations today. Back to posting about my usual nonsense tomorrow.

…who, in addition to the honor of being the most reliably enjoyable poster on this venerable blog, has been named as a 2026 Guggenheim Fellow. As they say in Indiana, mazel tov!

My new paper with Tal Kastner (Rutgers) is now available on SSRN. It is entitled “Recitals and Contract Interpretation” and is forthcoming in FSU Law Review. The abstract follows:

Despite longstanding interest in the interplay between text and context in contract interpretation among courts and commentators, recitals—the “whereas” clauses or prefatory provisions at the start of a contract, which operate at the edge of the document’s “four corners”—have yet to be given much scholarly attention, let alone theorized. This paper interrogates the rationale for and challenges the traditional rule that contract recitals lack interpretive weight unless ambiguity exists in the “operative” contract provisions. Drawing on caselaw, contract theory, and relevant developments in statutory interpretation, it argues that courts should reverse the default rule that marginalizes recitals and presumptively dismisses them as “non-operative.” Instead, courts should consider the entire document—including preambles and recitals—as part of the interpretive baseline from the outset without looking for ambiguity in operative provisions first. This proposed shift, rooted in canons that direct courts to consider the contract as a whole, suits both formalist and contextualist jurisdictions. Ultimately, this paper offers a framework for understanding recitals as meaningful textual cues that illuminate contractual purpose, promote interpretive coherence, and enhance party autonomy. By harmonizing recitals’ status in contracts with the more coherent interpretive treatment of enacted preambles and purposes in statutes, courts can best achieve the dominant goal of contract doctrine: effectuating the intention of the parties as manifested in their agreements.

In 1841, Congress enacted a federal bankruptcy statute. The implementation of this statute was problematic and Congress repealed it two years later. Before that, though, Congress asked all federal judges for written comments on how the law could be improved. This was an unusual request, but even more unusual was that six Justices (including Chief Justice Taney) provided comments.

You can imagine something similar happening today on a technical subject, though without the participation of any Justices. But I doubt Congress would make such a request or that judges would answer that call.

While going through the Holmes Devise volume on the Taney Court, I learned that back then the Marshal opened Court by saying “The Honorable, the Judges of the Supreme Court of the United States.” Now, of course, the cry is “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States.”

When was this changed and why? Because some Chief Justice wanted to be singled out? Because they wanted to be called Justices instead of Judges?

This leads to another of my pet peeves, which is the Article III describes what we call Associate Justices as “Judges.” The Judiciary Act of 1789 instead called them Associate Justices. Textualism was ignored right from the start! The subsequent practice was more faithful to the text though. In my Bushrod Washington research, I found that virtually nobody referred to him as Justice Washington. They generally called him “Judge Washington.”

UPDATE: To compound the confusion, Supreme Court Reporters in our early history invariably referred to “Justice X” when announcing a decision by an Associate Justice. (“Justice X delivered the opinion of the Court.”) But many of those same reports said “Judge X” in the text to refer to, say, other Justices.

I confess that I did not know about Viola Liuzzo: A white woman marched in Selma and worked to register voters, murdered by Klan members who were acquitted by all-white state juries but convicted on federal civil rights charges. She has a number of memorials to her in Detroit, including a posthumous honorary degree from Wayne State and, now, an honorary street sign.

Liuzzo has remained a local story. On the other hand, numerous movies and documentaries (most famously Mississippi Burning) tell thesimilar story of Andrew Goodman, Michael Schwerner, and James Chaney in Philadelphia, Mississippi–Klan kills civil rights activists, white local juries acquit, Feds succeed on civil rights charges. Norman Rockwell painted “Murder in Mississippi:” Memorials have been erected throughout the country.

The difference tells us something about the legal stories that stick in history, those that history forgets, and why the difference.

The Mississippi case had one unique piece: Local law enforcement officers were involved in the killings. It produced SCOTUS precedent (US v. Price) establishing conspiracy as a basis for action under color for § 241 (and § 1983) purposes. It also furthers the narrative of a Black/Jewish alliance.

That Liuzzo was a woman almost certainly affects perceptions and memory. Today we celebrate her as the only white woman killed during the Civil Rights Movement. In 1965, being a woman no doubt triggered “she never should have been there” discourse–not only as an outside agitator in the Jim Crow South (the label with which southerners tagged Goodman and Schwerner) but also as a woman venturing outside the home in the early days of the Women’s Movement. The story above adds other elements–one of the people in the Klan car was an FBI informant. And J. Edgar Hoover initially smeared Liuzzo as a drug user who was having sex (“necking parties,” he called them) with the Black Alabamans she was working with. (Who needed the Klan when we had Hoover?)

I have an article coming out soon on various constitutional issues surrounding the draft. So of course I was interested to see the announcement this week that draft registration will become automatic starting at the end of the year. From an administrative standpoint, this makes sense. But the change raises a question.

Five years ago, the Court denied certiorari in a case challenging male-only draft registration. Three Justices concurred in the denial on the ground that Congress was “actively” considering changing to a sex-neutral registration system. This is no longer the case. Thus, the new administrative system could be challenged in another attempt to overrule the 1981 Rostker decision upholding male-only registration. Perhaps we will see such a lawsuit.

While reading the Holmes Devise volume on the White Court (1910-1921), I learned for the first time about the machinations behind Holland.

Chief Justice White was really fond of birds and utterly convinced that Congress had the power to protect them. (You can probably guess where this is heading.) When the Act of Congress protecting migratory birds was before the Court, the Justices were initially divided 3-3 (3 Justices were ill or absent).

The Chief Justice then asked the Supreme Court Librarian to conduct additional research on the subject, and the Librarian concluded that the Act was invalid. As far as I know, this is the only time that the Librarian was asked for or provided a legal conclusion to anyone on the Court.

Undaunted, the Chief Justice then came up with the idea that a treaty could be made with Canada to protect these birds. He talked with some Senators about this. There was one problem. The case challenging the Act would presumably be decided once the ill Justices returned and before the Treaty was ratified. So the Chief Justice delayed the second argument until the treaty was ratified. (World War I broke out, which gave him the excuse that he needed.) That case was then dismissed, and Missouri v. Holland came to the Court. The Act was upheld, in an opinion by Holmes, relying in large part on the treaty.

Alex Bickel wrote this account. I don’t love his scholarship, but he had a great line summing up this episode:

“Everyone who has power is likely at one time or another to find some cause that seems greater than the restraints he normally acknowledges, and it can turn out to be something like human neutrality in the war among the birds, the insects, and the trees.”

On last night’s The Pitt, Dr. Robby (Noah Wylie) pushes an unsure and hesitating resident to act quickly in an emergency situation by saying “Doctor the fuck up.”

I will now incorporate this into my daily work:

Unprepared or unconfident students: “Civ Pro the fuck up.” (Can be topic-specific: “Erie the fuck up”).

Colleagues with writers’ block:”Legal scholar the fuck up.”

Administrators slow with next year’s schedule: “Dean the fuck up.”

My current mental exercise project is to read all the volumes in the Holmes Devise. I’ve looked at parts of them before but never all of them. I’ll have more to say about the Holmes Devise in future posts.

One fun fact that I learned is that President Cleveland nominated William Hornblower to the Supreme Court. The Senate rejected his nomination. This was a shame, if for no other reason than we were deprived of ability to write lines like: “As Justice Hornblower said . . .”

I’m confused. If you read current judicial opinions, you will see that some refer to the “Department of Defense” and others refer to the “Department of War.” I don’t know what criteria these courts are using, because as far as I tell they do not explain their terminology choice.

You might think that an opinion that refers to the Department of War in a challenge to an action by that Department might be more likely to reject the challenge and vice versa. That’s an empirical question, of course, though I would note that the DC Circuit’s new opinion denying Anthropic a stay chose “Department of War.”