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Articles by Howard Wasserman
Litigation or education and advocacy
Eugene Volokh defends FIRE from criticisms that it is a right-wing advocacy group rather than a free-speech group. Critics argue that FIRE only protects right-leaning speakers or that it only protects left-leaning speakers to give itself political cover for its real mission. Looking at 23 decided cases since 2025 (on Westlaw), Volokh shows that FIRE litigates on behalf of speakers across the ideological spectrum against speech restrictions from across the ideological spectrum.
JOTWELL: Steinman on Carroll & Mustafa on ascertainability
PrawfsBlawg "Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005"
Offering as religion or as good luck
Mike Dorf with an interesting post about whether, during a visit to a Buddhist monastery, he should move grains of incense as an offering. He explains why he (a cultural Jew) elected not to it, linking it to the way in which Japanese people move freely between Eastern religions, whereas Abrahamic religions are more exclusive.
Can’t fire the VP
Season 4 of The Diplomat depicts a President making catastrophic, unlawful, warmongering decisions, then refusing to listen to and punishing dissenting voices. The group pushing back includes the VP, Ambassador to England, senior leadership within the U.S. Mission, W.H. Chief of Staff, and the Secretary of State. Hovering over it all is the power in having a seat at the table and the threat of the President firing or removing someone from their position.
Threepeats, baseball, and elections
Bluesky user William B. Fuckley offers this: “the last time a team pulled off a World Series threepeat the incumbent party lost the White House next presidential election….if you value democracy you must root for the dodgers.” He is referring to the 1998-2000 Yankees, after which Republican W. succeeded Democrat Clinton.
JOTWELL: Erbsen on Francois and Hershkoff on Pennoyer as Con Law
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Universality will not die
The Sixth Circuit affirmed an injunction prohibiting Tennessee from enforcing a law prohibiting “recruiting” minors (i.e., providing truthful information about how) to obtain lawful abortions outside of Tennessee. The majority affirmed a universal injunction for two reasons–the law was overbroad and it raised concerns of interstate federalism (one state infringing on the power of another) rather than horizontal separation of powers as in CASA.
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Crim pro question, “Furious” edition
Folks should watch Furious (Hulu), a great show about a female FBI agent hunting a female serial killer targeting men who trafficked her. (I do not believe this involves spoilers).
Younger and Bad Faith
We may be heading towards a reckoning over Younger and its bad-faith exception. I wrote about this case. Florida AG James Uthmeier pursued state-law consumer-protection charges against against medical organizations over their support and policies over gender-affirming care, an action that likely violates the First Amendment. The organizations filed a § 1983 action in Illinois, seeking to enjoin the state-court proceeding.
Academic freedom and judicial activism
Dan Drezner (IR at Tufts) and John Wilson (Vanderbilt) have takes on Vanderbilt’s The University and its Purpose: A Statement of First Principles. Both argue that, in various ways, the document misunderstands the academic freedom it purports to protect, defend, and support. Both are correct. I want to hit on one small point: The statement repeatedly (13 times) invokes academic merit, distinct from personal or political commitments.
Gratuitous judicial supremacy
Cooper v. Aaron offered a gratutious paean to judicial supremacy, one unnecessary to resolve the case at hand (whether Arkansas official could delay implementing a court order compelling desegregation of Little Rock schools). The District of Maryland makes the same gratuitous move in enjoining enforcement of Trump’s new anti-birthright citizenship E.O. On p.26, Judge Boardman writes: The Supreme Court has spoken: Children in the certified class are “citizens at birth.” Barbara, 146 S. Ct. at 2450.
Moynihan on the (sorry) state of higher ed
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Hiring Announcement: FIU College of Law
FIU College of Law is hiring for 2-3 pre-tenure positions. We seek candidates in Criminal Law; Criminal Procedure; Evidence; Wills & Trusts; Family Law; Tax; and Business Organizations, as well as coverage in foundation courses. Qualified candidates are encouraged to send a CV, cover letter, and provide names and contact information for at least 3 references to Committee Chair Howard Wasserman at lawprohiring@fiu.edu. Please also submit an online application at careers.fiu.edu, Job ID 538098.
CALL FOR NOMINATIONS FROM AALS SECTION ON FEDERAL COURTS
Best Untenured Article Award The AALS Section on Federal Courts is pleased to announce the annual award for the best federal courts article by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2027 AALS Annual Meeting. This Award recognizes outstanding scholarship in the field of federal courts by untenured faculty members.
CFP: Third Conflict of Laws Annual Workshop
Posted at the request of Roger Michalski (Oklahoma!) We are excited to announce that the Third Conflict of Laws Annual Workshop (CLAW3) will be hosted by the University of Pennsylvania Carey Law School on Friday, November 13, 2026 with a welcome dinner the night before. The CLAW aims to provide a forum to discuss new work in conflict of laws. The CLAW welcomes work on all aspects of conflict of laws, including civil, criminal, domestic and transnational conflict of laws.
FIU’s indoor-expression reg preliminarily enjoined
By Judge Jacqueline Becerra (S.D. Fla.). I have written about the case a few times–seven students from a campus group called ICEBreakers silently revealed “ICE OFF FIU” t-shirts during an event in which the university president interviewed Alex Rodriguez (don’t ask). They were sanctioned under a university regulation prohibiting indoor protest activity.
The other side of church autonomy
Florida Attorney General James Uthmeier has threated to withhold state funds from Catholic schools who fail to offer students religious exemptions from vaccine requirements. The Florida Conference of Catholic Bishops eviscerated (in a kind, clerical way) Uthmeier and his request. Uthmeier appears surprised that church autonomy extends beyond the right to fire ministers or limit who they work with for adoptions.
Plus ca change
My 91-year-old mother loves watching Turner Classic Movies (TMC). Visiting her today, the movie was The Male Animal (1942), a comedy about the meaning of masculinity in a battle among an English professor (Henry Fonda), the university Board’s obsession with the football team and building a new stadium, and the prof’s wife’s attraction to the former football star who returns to campus for the big game. The movie adapts a 1940 James Thurber play.
Attacking universities
Take the whistleblower complaint by several career DOJ attorneys working with the Task Force to Combat Anti-Semitism as the equivalent of a complaint–one party’s version of events.
What are we doing?
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ICE protesters sue FIU
Further update to this: The students sued, represented by the Florida ACLU. They challenge future enforcement of the FIU reg prohibiting indoor protest, as well as the university decision to suspend them under that rule. Two things of note: • They argue that the indoor-protest regulation is content-based because it treats protest different than other speech, such as commercial speech (and activities such as tabling).
Passing of Russ Weaver
Announcement from SEALS Board. Russ made the SEALS and the SEALS Annual Meeting into what it is–an engaging and intellectual academic conference that offers opportunities to a broad range of scholars that also allows people to have fun with their families.
Bad reporting on the law of sport
In their casebook The Jurisprudence of Sport, Mitch Berman and Richard Friedman create a course using sports rules to illustrate law, jurisprudence, and legal systems. A unique rule’s issue arose in last night’s Red Sox-Blue Jays game; the coverage of it illustrates how bad media is at covering law. The Sox had 1st/3d with one out, but the scoreboard showed two outs (the prior play had created some confusion). The batter flied out to center.
Vanity license plates as private speech
So says the Fourth Circuit, where the plaintiff sought a vanity play “FTP&ATF.” The court distinguished the unique alpha-numeric combination on the plate from the mottoes, messages, or promotions (“Live Free or Die;” “Sons of Confederate Veterans”) that Walker held constitute government speech.
Still not standing
South Carolina legal bigwig Alex Murdaugh was convicted of killing his wife and son; the South Carolina Supreme Court overturned the conviction on the grounds that the court clerk had improperly communicated with and influence the jurors. Murdaugh filed a § 1983 action against the clerk, seeking to recover the attorney’s fees he expended defending himself; I wrote about what some interesting § 1983 questions around the lawsuit.
SEALS: Constitutional Law Workshop: Trump’s Attacks on Institutions
For folks attending SEALS this week: Tom Metzloff (Duke) and I have organized a Constitutional Law Workshop on the Trump Administration’s attacks on institutions. The workshop consists of three discussion groups exploring a different institution: Judiciary (Wednesday), Universities and the Academy (Thursday), and the Legal Profession (Friday). Each runs 9 a.m.-noon on the respective day. SEALS discussion groups are great because anyone can show up to participate as a discussant.
Random items
Back from SEALS, with some random items that have built up over the week. • The trio of discussion groups went really well–well-attended and generating thoughtful conversations. Two throughlines emerged for all: 1) Finding the line between healthy (if pointed) criticism and harmful assaults on institutions and 2) Identifying what is genuinely unprecedented in degree or kind and what is an echo of what has happened.
When the title asks a question, the answer is always “no”
Brad Wendel asks “Should Law Schools Teach Responsible Use of AI?”He answers the question in the first paragraph. Wendel does not stop with the shortest-ever Substack essay.
Update on Prawfs New Home
Main Wednesday, September 17, 2025 I am sorry to learn that Rick is sunsetting Mirror of Justice and leaving Prawfs. I will miss presence here and that blog. But we otherwise carry on. We have our new site at WordPress--prawfsblawg.com; be sure to bookmark it. Typepad is working to save and export twenty years of content to the new site; hopefully that will be done well before Typepad shuts down on September 30 and we will move to the new site with our history in tact.
Civility in content v. Civility in tone
Main Sunday, September 14, 2025 Right-wing calls for "civility" focus entirely on tone and not on content. They* should be able to say the most hateful, obnoxious, offensive things, free from criticism, opporobrium, or protest; everyone must sit listen. Their only obligation is that they say it with a smile and a nice tone. [*] Although not lefties, liberals, and university professors.
When a free-speech villain becomes a free-speech martyr and what we even mean
Main Friday, September 12, 2025 I posted my thoughts on the Charlie Kirk murder yesterday, but a Typepad glitch (the platform seems to be going out in a blaze of malfunctioning glory) caused it to be deleted. So trying again--with a slightly different focus--with another 12 hours of news. 1) Charlie Kirk should not have been murdered and whoever did it (they seem to have arrested the right guy, after two prior mistakes) should be tried and, if convicted, punished.
JOTWELL: Carroll on Wilf-Townsend on unenforceable contract terms
Main Thursday, September 11, 2025 The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Daniel Wilf-Townsend, Deterring Unenforceable Terms, 111 Va. L. Rev. __ (forthcoming 2025), on the procedural problems and solutions to unenforceable provisions on mass contracts. I learned a lot of stuff that I had not thought about from this one.
Constitutional Litigation After Trump v. CASA
« Harvard wins and district judge pushes back | Main Wednesday, September 03, 2025 As I mentioned, I have posted Constitutional Litigation After Trump v. CASA on SSRN. It now floats in the law-review-submission ether. Abstract after the jump. Trump v.
Harvard wins and district judge pushes back
« Teeing up Sullivan | Main Wednesday, September 03, 2025 The District of Massachusetts granted Harvard and its AAUP Chapter summary judgment on several claims, ruling that the cancellation of various grants violated Title VI and the First Amendment. The opinion is 84 pages and I probably will not get to it tomorrow.
« Third-Party Checks and Balances | Main Monday, August 11, 2025 The New York Times continues its crusade to help the Trump Administration destroy higher education with a puff piece (and that may be too weak to describe this) on May Mailman, the attorney (an HLS grad) behind the administration's attacks.
« Congrats to Gerard | Main Wednesday, July 30, 2025 Donald Trump apparently wants Harvard to pay more (current figure being tossed around is $ 500 million) not based on Harvard engaging in greater wrongdoing than Columbia* but because Harvard is a bigger "name" and thus should pay more than Columbia. [*] Putting aside that neither did anything sufficiently wrong to warrant any this nonsense.
« Bigger picture on the threat to universities | Main For winning the Erwin N. Griswold Award from the Supreme Court Historical Society for Washington's Heir. Gerard will deliver the Griswold Prize Lecture in September. Posted by Howard Wasserman on July 29, 2025 at 07:35 AM in Books, Howard Wasserman | Permalink The comments to this entry are closed.
« Down goes Columbia | Main Thursday, July 24, 2025 Hulk Hogan (ne Terry Bollea) died Thursday at age 71. I was a wrestling fan in Hogan's early days in then-WWF the late-'70s/early-'80s as a heel battling Andre the Giant and having a role in Rocky III. I had stopped watching by the time he became a hero and champion and helped turn now-WWE into an international juggernaut But Hogan also played a role as free-speech villain.
« Nineteenth-Century Dictionary Database? | Main Friday, July 18, 2025 Consensus is forming around CBS canceling Late Show and thus firing Stephen Colbert (Go 'Cats): They had financial reasons related to the general demise of late-night, but the optics look lik an effort to appease Trump by silencing a critic and that almost certainly played a substantial role in a Mt. Healthy mixed-motive sense.
« Not Your Typical Campaign Ad | Main Monday, July 14, 2025 From HLS Dean John Goldberg (H/T: Mike Dorf): Dear Members of the HLS Community, I am heartbroken to write with news that our dear colleague and friend Richard Fallon, Story Professor of Law, passed away yesterday. For many of you, this news will come as a shock – he was diagnosed earlier this summer with an aggressive cancer and preferred not to make this information widely known.
« Trump plays procedural games, wins procedural prizes (Updated Twice) | Main Thursday, July 03, 2025 Here, this time with prejudice, because plaintiffs largely failed to clean-up the press-release pleading the court dismissed in January.
« Just overrule Bivens already | Main Monday, June 30, 2025 Yes, the Trump Administration will oppose class certification in CASA and all the other challenges to Trump policies. That says nothing about the correctness of CASA and to treat it as such willfully disregards the nature of constitutional litigation. For better or worse, the system delegates constitutional review to courts in the course of resolving disputes between adverse parties who operate in an adversarial system.
« Saturday Music Post - Blueberry Hill | Main Saturday, June 28, 2025 The temperature around CASA is high. Some thoughts 24 hours after the decision and my original post, and having had an opportunity to think about the opinion and to hear the discourse around the opinion. The podcast Advisory Opinions analyzes the opinion with Will Baude and Dan Epps of Divided Argument.
About that UF student paper
« Four Days in December 1941 | Main Sunday, June 22, 2025 From the New York Times.This begins with a fall 2024 seminar on originalism co-taught by U.S. District Judge Badalamenti (M.D. Fla.) at UF.
« Fractured Opinions | Main Friday, June 20, 2025 Having used its pages to "just ask questions" and thus launder anti-trans bigotry into empathetic medico-scientific caution, the Times bounces the rubble with a long story about how the Skrmetti litigants "gambled and lost and "set the movement back a generation." Josh Blackman reads the story as revealing something meaningful about movement politics and the shape of the left.
11th Circuit denies stay in challenge Florida immigration statute
« The Ten Commandments in Texas | Main Monday, June 09, 2025 I wrote about the scope-of-injunction issues in the challenge to Florida's law criminalizing undocumented persons entering or being present in the state--whether, in an action against the AG and every local prosecutor, the court could enjoin law enforcement from arresting people under the law. An 11th Circuit motions panel refused to stay the injunction, on the merits and as to its application to non-party law enforcement.
« Changes to Inaugural Law and Political Economy Conference | Main Saturday, June 07, 2025 The Trusts and Estates Section of AALS is seeking nominations for the annual Browne C. Lewis Section Award. Please share this information broadly. We hope to get many nominations! Browne C. Lewis Section Award Aimed at recognizing outstanding professionals who have made significant or long-term contributions to the field of trusts and estates.
« Saturday Music Post - How Sweet It Is (to Be Loved by You) | Main | Browne C. Lewis Section Award, T&E Section of AALS » Saturday, June 07, 2025 From conference organizer Luke Norris Planning is still underway for the first annual LPE conference, but we're pushing the dates to FEBRUARY 5-7, 2026. We'll be putting out a CFP by August with information about how and what to submit.
Edelson & Hellman on antisemitism, anti-Zionism, and Title VI
« The 21st Amendment Conventions | Main Tuesday, May 27, 2025 SSRN Link here, forthcoming next month in Harvard Law Review Forum. Ben summarized the piece on Bluesky. Their conclusions are tentative.
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