Reform police liability through state tort law

My colleagues Ben Zipursky and Bennett Capers, together with John Goldberg, have an important op-ed in today’s Washington Post:

“How to reform police liability without involving McConnell or Trump”

“Police officers enjoy almost complete immunity from civil suits in federal court. They can shoot someone, taser someone, choke someone, or press their knee into someone’s neck until they can’t breathe. They can brutalize peaceful protesters. And yet, in large part because of the court-made rule of qualified immunity, officers rarely face liability.

“The calls for ending qualified immunity have not gone unheard. The House of Representatives passed a bill that would eliminate it and enable victims to obtain remedies for violations of their civil rights. But Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate have balked at this change, as has President Trump. Likewise, the Supreme Court recently declined to revisit the subject.

“The good news is that changing federal law is not the only way to erase the grave accountability deficit for unlawful police violence. There’s an alternative hiding in plain sight: state law.”

See the rest here.

My Torts Syllabus, Fall 2020

As promised, my Torts syllabus from Goldberg, Sebok, Zipursky’s casebook:


Overview: Tort law, to put it simply, concerns the legal protection through civil proceedings to protect bodily autonomy, emotional integrity, and property. It is the law of personal injuries and accidents, but it is also the law that protects the broadest range of private rights and public goods. We begin with intentional torts as an introduction to the subject. Then we proceed step by step through the elements of a tort: duty, breach, causation, damage, and defenses. We will focus on the purposes of the tort system, including corrective or moral justice (and civil recourse), deterrence, compensation, and social justice, as well as secondary factors like judicial economy/institutional efficiencies.

The course focuses chiefly on the law of negligence and strict liability. We conclude by exploring alternatives to the tort system, such as regulation, workers compensation, insurance, and no-fault programs.

Goals of the class:

  1. Learn how to read a case for a) the key facts, b) the procedural posture, c) the legal question or issue, d) the rule, and e) the reasoning and analysis.
  2. Learn common law reasoning, focusing on the role of precedent and synthesis.
  3. Learn to engage in legal argument. What are the arguments on both sides?
  4. Understand fundamental concepts in torts that arise frequently in many areas of law, such as causation, rules and standards, strict liability, the harm within the risk, judicial economy, private attorney general
  5. Learn the structure and principles of tort law, including the purposes of corrective justice, deterrence/efficiency, compensation, loss spreading, and social redress.  These topics will introduce a variety of perspectives on American law: doctrine, policy, politics, history, theory, economics, and psychology.

[For rest of syllabus, click on “page 2” below]


If you use a “mail” or “absentee” ballot, even if you drop it off directly at the designated county drop-box or polling center, it most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality. If you can, please vote EARLY IN-PERSON with a regular ballot, not a mail-in ballot that depends on envelopes and signatures.

A must-read article by Greg Sargent in the Washington Post on how Trump can slow down mail service to steal the election. He found that the key swing states have a rule: mail/absentee ballots that arrive late (even if they are post-marked before the election) will not be counted.

My long-standing concern is that each mailed ballot is its own hanging chad, its own built-in legal delay. A mailed ballot can be challenged based on postmark, arrival, signature, etc. Lawyers can use these challenges in bad faith (like they did in Florida 2000) to grind any count to a halt. That was going to be the Republican strategy now that we all know that mailed ballots are going to be much more heavily Democratic, leaving Election Day votes more heavily Republican (and counted immediately). If you can grind the vote count down to a halt, states can miss the Electoral College deadlines, no candidate gets to 270 votes as states are blocked from certifying their Electors, and the election can get thrown to the House (like in Jefferson v. Burr in 1800). Under both the original Constitution and the 12th Amendment, the House vote is by state delegation, not by number of representatives. [Non-partisan factual observation: The Republicans will have at least 26 state delegations in 2021, because there are more Montanas and Mississippis than Californias and New Yorks.]

I hate to say this, but I think it is time to shift our focus from mail/absentee voting…

to EARLY IN-PERSON voting.
Obviously, in-person voting has Covid-19 risks.
*No long lines on election day.
*No deliberate or accidental mail delays.
*No bad-faith legal challenges on postmarks/signatures to slow down vote count.

[Update Aug. 17: Jamelle Bouie in his NY Times op-ed adds another reason: Early in-person votes will be counted on election day, and election night momentum is crucial. It is important for public opinion to have more votes counted on election night. Even if you’re not in a swing state, it is important to have more votes counted on election night. The media are bad at setting expectations.]

The bottom line is that the swing states (including IA and TX but not NH) all have some kind of early voting. PA is county-by-county, but counties that offer a mail option also provide direct drop-off at county office (these mail votes still need signatures and are thus vulnerable to legal tactics, but at least the drop-off avoids any mail sabotage).

[Update: I’ve been asked to explain my concerns about legal delays of mail and absentee ballots a bit more clearly. Let’s start with Florida 2000: Florida used hold-punched ballots, and any ballot that wasn’t fully punched (generally because of old machinery or uncleaned machines) had a “hanging chad” piece of paper. In the recount, any hole-punched ballot with a “hanging chad” could be challenged and scrutinized for “voter intent.” Even ballots that were mostly punched for Bush or Gore could be checked for several minutes. The Bush campaign had the lead and had a majority of states in the House, so they had a strategy to delay. In 2020, there may be even more of a strategy to delay and run out the clock on the electoral college.

EVERY mailed vote is a hanging chad, because every mailed vote has an envelope with signatures on it. Lawyers can challenge every signature, meaning a delay of several minutes or longer for each mailed vote. Now what if we’re talking about Pennsylvania, a state with 6 million votes, and 3 million mailed ballots, 3 million signatures, 3 million postmarks. Imagine counting 3 million hanging chads. This is a recipe for running out the clock on Pennsylvania’s votes and the next thing you know, no one has 270 electoral votes, and arguably the House will choose. If lawyers challenge enough states to stop their votes, the candidate who actually lost the real vote might have a temporary lead by blocking his opponent’s states from certifying. By the time January rolls around, the loser may have more electors due to this legal strategy: a “rump” electoral college lead by legal delay. Guess what the Supreme Court would say? “Political question,” let the House decide. [And non-partisan FYI, Republicans are likely to have a 26-24 lead among House state delegations].

The following is a chart of states have “early in-person” voting (ballots that are automatically counted on election day) and “early absentee/mail drop-off” (which is a second-best because it avoids needing to use the USPS, but those ballots are often not counted on election day, as determined county-by-county, and have signatures that can be challenged):

Here are resources to check how you can vote early in-person (or by mail/absentee):

Bonus states: Massachusetts: Likely early voting Oct. 23 to Oct. 30. For Sept 1st primary, the early voting is Aug. 22-28. Find locations by town here.

New YorkStarts 10 days before the election.Ends 2 days before the election.


We are contesting Trump’s commutation of Stone’s sentence.

My colleague, friend, and co-author Ethan Leib and I are working with Free Speech for People to contest Roger Stone’s commutation in the trial court. Ron Fein, John Bonifaz, and Ben Clements filed a motion yesterday before Judge Amy Berman Jackson. We argue that the Constitution limits the pardon power to uses that are in the public interest, not primarily for self-interest, self-dealing, or self-protection.

When the Framers added the phrase “faithful execution” to the Constitution, for the president to ‘take Care that the laws be faithfully executed’ and for the presidential oath, they were drawing on a long English tradition of this phrase signifying limited powers on behalf of the public interest, and rejecting the unlimited prerogatives of kings. These republican limits are similar to fiduciary duties against self-dealing. Thus, pardons and commutations that are in self-interest and against the public interest are unfaithful execution of the office and are constitutionally invalid.

The Free Speech for People public statement is here.

UPDATE July 31: You win some, you lose some… Motion denied, but I’ll take solace in Judge Jackson calling us “well-intentioned law professor[s].”

Our articles supporting this argument are:

Andrew Kent, Ethan Leib, and Jed Shugerman, “Faithful Execution and Article II,” 132 Harv. L. Rev. 2111 (2019)

Leib and Shugerman, “Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation,” 17 Georgetown Journal of Law & Public Policy 463 (2019)

Shugerman and Leib, “This overlooked part of the Constitution could stop Trump from abusing his pardon power,” Washington Post, March 14, 2018

My Administrative Law Syllabus (Strauss Casebook)

There’s a discussion about whether law professors should share their syllabi.

The answer is yes.

Here is my Administrative Law syllabus for summer 2020:



Gellhorn and Byse’s Administrative Law, Cases and Comments, eds. Peter Strauss, Todd Rakoff, Gillian E. Metzger, David Barron, Anne Joseph O’Connell (12th edition).

The Library has copies available on reserve and it is available for purchase at the Fordham Bookstore. I will use TWEN, Westlaw’s course management service, to distribute supplemental materials and class-related announcements. Please register for the course on TWEN (

Week 1 (May 19, 21): Introduction

The introductory Tarmac problem, 3-31. Intro readings, 31-49.

Whitman v. American Trucking and Gundy v. United States (2019) are the two main cases. 790-830, Casebook supplement posted on TWEN, pages 35-46.

Boreali and Statewide Coalition v. NYC DHMH, 23 N.Y.3d 681 (2014)

3) Tuesday, May 26:
Chapter 3: Procedural Framework for Administrative Action
APA 1464-78
Londoner 218
Bi-Metallic 222
Chenery 249

4) Thursday, May 28:
Chapter 4: Rule-Making
Vermont Yankee 295
Veterans Justice 313
Nova Scotia 322

5) Tuesday, June 2
Notice-and-Comment continued:
U.S. v. Dean, 344-48
Texas v. U.S. 357-65

6) Thursday, June 4

GE v. EPA, Center for Auto Safety 365-71
Note on ACA, supplement, p. 11-14
DACA and Kisor notes in supplement, p. 15-18

Rulemaking procedures, continued, 396-409
EO 12866, EO 13771, 409-43

Ex Parte contacts: HBO v. FCC, 444-448
Open-minded decisionmaker? C & W Fish, 455-57

7) Tuesday, June 9

Adjudication I
FTC v. Cement Institute, 464-69
Notes 470-77
Formal Adjudication 478-80
Citizens Awareness Network, 480-87
Lucia v. SEC, Supplement 23-24

Adjudication II: Informal adjudication:
Dominion Energy, 528-33
Pension Benefit 533-37
Olivares, 538-44

Due Process: Matthews 563-80

8) Thursday, June 11
Adjudication III: Applications
No-Fly List, 596-14

Transparency, 653-661
War on Terror, Leaks 669-71
FOIA, 672-82
Milner v. Dept of Navy, 683-93
Fox News v. Treasury, 698-716

9) Tuesday, June 16

The Structural Constitution: 775-90
Chadha, 831
Bowsher, 860
Youngstown, 871
Appointment and removal, Free Enterprise and selections from 882-1004
PHH v. CFPB, Supplement 46-47

Seila Law v. CFPB (June 2020)

Shugerman, “The Imaginary Unitary Executive,” Lawfare Blog.

10) Thursday, June 18

Judicial Review I:
Review APA, the 700s
Shaws’s 1037-40
Universal Camera, 1049-57
Motor Vehicle Manufacturers Ass’n v. State Farm, 1069-80

DHS v. Regents (DACA Cases, June 2020)

11) Tuesday, June 23:
Judicial Review II

State Farm notes, 1085-87
FCC v. Fox, 1100-14
Skidmore, 1125-28
Chevron, 1129-36
Chevron notes, 1136-71

12) Thursday, June 25:
Judicial Review III
MCI v. AT&T and notes, 1171-1202
Solid Waste, 1203-1215
Preemption, 1215-21
Mead, 1221-35 [and Auer notes to 1235-53]
Kisor, supplement at 90-96
Massachusetts v. EPA 1253-68
City of Arlington, 1279-97

13) Tuesday, July 7:
Justiciability and Standing
Lujan, 1300-09
Akins, 1317-21
Qui Tam, 1323-24
Allen v. Wright and notes, 1340-59
Emoluments, 98-99
Blumenthal v. Trump, DC Circuit per curiam Feb. 2020

14) Thursday, July 9: Paper Presentations

Standing, Cont.
Bowen, 1386-98
Webster v. Doe, 1399-1405
Finality, 1418-21
Ripeness, 1424-26
Remedies, 1430-43

15) Tuesday, July 14: Presentations

Major wrap-up cases:
Trump v. Hawaii (2018), Supplement, 96, 102. Read case
Department of Commerce v. NY (Census Case 2019), Supplement at 68

(If time permit, King v. Burwell, Little Sisters, Preemption/Wyeth v. Levine)

The Imaginary Unitary Executive (Lawfare Essay)

I’ve posted on the Lawfare blog a long-form essay “The Imaginary Unitary Executive.” Link here.

Summary: “Contrary to The Decision of 1789 myth, which SCOTUS relied on to expand presidential power, the legislative record and a diary show that the first Congress rejected the exclusive unitary model.”

Big thanks to Ben Wittes and Quinta Jurecic for excellent editing over Independence Day weekend, in time for a big week on the Supreme Court: “Trump’s lawyers relied on unitary arguments & precedents to contest congressional and state prosecutor subpoenas. The Decision of 1789, properly understood, is no basis for such an argument. In fact, the first Congress’s record militates in favor of congressional oversight.”

This essay is based on two chapters from my book project The Imaginary Unitary Executive.

First: “The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive” on the Madison strategy, the House debate, & Senator Maclay’s diary.

Second: “The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive” focused on the Treasury Act of 1789 & many statutes from the first Congress and the early republic delegating removal power to judges & juries.

TrumpCast on Barr and the Imaginary Unitary Executive

I talked to Virginia Heffernan on her podcast TrumpCast yesterday, posted today: “Worst AG, Barr None.”

Link here.

Those who think Barr is an evil genius are half right. He’s not only the worst Attorney General in American history. He’s not even a good lawyer or a competent fixer. He just pretends to be one on TV. Virginia talked about his series of legal and historical errors, from the likelihood his efforts to help Flynn will backfire… to his SDNY firing fiasco… to his ahistoric myth of the Unitary Executive. Continue reading “TrumpCast on Barr and the Imaginary Unitary Executive”

The Imaginary Unitary Executive: The Non-Unitary Decisions of the Founding Era

As part of my new book project “The Imaginary Unitary Executive,” I have two new papers on SSRN:

The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I)

The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II)

Here is the abstract for the two papers:


Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:
1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. The switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity…
2) …and a Senator’s diary indicates the Senate sponsors, to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A cryptic comment by a presidential House member hinted at this strategy.
3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.”
4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy.
5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate.
6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years.
7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability

Keywords: Constitutional law, legal history, unitary executive, administrative law, removal, the presidency, judicial power

May 4th Panel: “In the Field with Covid-19”

On Monday, May 4th, I’ll be moderating a panel with three doctor-experts on Covid-19 who are in the field, on the front-lines, and are monitoring the latest medical and policy news:

BaSadeh (In the field) with Covid-19: Experience and Expertise
A Conversation with Temple Beth Zion Members on the Frontlines of the Covid-19 Pandemic

Co-Sponsored by the JCC of Greater Boston and Brookline Interactive Group. Learn about the impact of and science and policy behind our current health crisis and what it can mean for us going forward.

Link here.  Zoom and Facebook Live

Panelists include:

Katherine Gergen-Barnett, MD, is the Vice Chair of Primary Care Innovation and Transformation and the Program Director in the Department of Family Medicine at Boston Medical Center (BMC).

Rebecca Weintraub, MD, is a Hospitalist and Associate Physician at Brigham and Women’s Hospital. She is an Assistant Professor at Harvard Medical School in the Department of Global Health and Social Medicine.

Asaf Bitton, MD, is a Practicing primary care physician, public health researcher, and health systems innovation leader, Executive Director of Ariadne Labs at Brigham & Women’s Hospital and Harvard T.H. Chan School of Public Health

You may have read Dr. Bitton’s post on March 13th, “Social Distancing: This Is Not a Snow Day,” which was covered nationally on the front end of the crisis as a vital guideline, especially for families navigating rules with their children at home.

Moderated by:
Me and our rabbi, Rabbi Claudia Kreiman, Senior Rabbi Temple Beth Zion

Medical and science topics:

The progress on testing for infection and antibodies; the connection between antibodies and immunity; explanation of vaccines and production; the risk factors in terms of pre-existing conditions and socio-economic conditions; updates on effects and precautions.

Policy updates: How are we doing now? What are the likely national, state, local policies over the next few months? What are the best policies? And what are best social practices? What should wb

Link here.



Blame China

(Tune of South Park, see link below…)

Times have changed
Pandemic getting worse
Kill off our grandparents
To lift this economic curse
Should we blame Trump’s government?
For gutting the NSC?
Or should we blame the lies of Fox TV?

No, blame China, blame China…

… This is no defense of China overall. But they gave us sufficient notice to act in January and February. Timeline link: China warned WHO of outbreak on Dec. 31, 2019.
Jan 7: China identified novel virus
Jan 11: China records first death
Jan 23: China placed Wuhan under quarantine