Today in Supreme Court History: December 3, 1996

12/3/1996: Printz v. U.S. argued.

Comments

[Dan Schiavetta]

International Shoe v. Washington, 326 U.S. 310 (decided December 3, 1945): this case is (as my law professor put it) the “fountainhead” of personal jurisdiction law, finally ending the “presence in the state” games begun in 1878 by Pennoyer v. Neff (which Civ Pro profs waste a lot of time on): jurisdiction over defendant consistent with Due Process if had enough “minimum contacts” in the forum state to “not offend traditional notions of fair play and substantial justice” (at issue was payment of unemployment insurance by out-of-state shoe seller) (Black’s dissent notes nothing in the Constitution supports this formulation) (but nothing prohibits it either) (largely in effect overruled by Daimler AG v. Bauman, 2014)

Hamilton v. Regents of University of California, 293 U.S. 245 (decided December 3, 1934): state university students with religious objection to war not exempt from required courses in military science; courses did not obligate them to military service (as an anti-war person myself I think we should all learn as much as we can about the “science” of war — I’ve read Sun Tzu, and not only does he make us understand the military mindset, much of what he says applies to other adversarial situations)

Griffin v. United States, 502 U.S. 46 (decided December 3, 1991): guilty verdict as to one objective of conspiracy (impeding IRS investigation into taxes) will stand even if no verdict as to another objective (impeding DEA investigation into forfeitable assets) (petitioner was not charged as to second objective)

[Dilan Esper]

Pennoyer is still good law as far as it goes. See Burnham v. Superior Court.

And International Shoe is good law too, in terms of the doctrine it announced. The Court has narrowed what general jurisdiction extends to, but the basic framework of "minimum contacts" remains.

[Dan Schiavetta]

True, even if there's no jurisdiction over you under International Shoe or Daimler, you can be validly served with process if you are physically in the state. Of course, this is if you're a natural person. Not if you're a corporation, which is why Burnham was an aggressively pro-business decision. And which is why I disagree with you about International Shoe. Mercedes had plenty of "minimum contacts" in California, and suing it there would not offend "fair play", but the Court still held for no jurisdiction.

[Dilan Esper]

If you are asked to write a 12-b-2 motion tomorrow, you will cite International Shoe and the minimum contacts test extensively.

[Dan Schiavetta]

I’d mention them in passing (to prove that I know about them) but I’d spend most of my time on Daimler. (Assuming I’m representing a corporation.)

[Dan Schiavetta]

P.S. That's if I was doing a good job. Which unfortunately is often not a good idea, at least if you want to impress a client, particularly an institutional client. In that case I would want to look like I was doing a good job, which would require several pages going through the history of Pennoyer, International Shoe, Burger King, Asahi, etc. Which would weaken my argument -- it takes the court's eye off the ball, which should be the Daimler holding, where there is not a lot of history to discuss -- but in a typical lawyer's life that's secondary.

[Dilan Esper]

You are just wrong. You still need to argue the minimum contacts test on specific jurisdiction. Go through the fair play and substantial justice factors. Etc. Every 12-b-2 brief does this.

[Dr. Ed 2]

There's much more to the Hamilton case, which is also dated, starting with:

"A state, by accepting the benefits of the Act of July 2, 1862, for the endowment, maintenance, and support of a "land grant" college, becomes bound, as one of the conditions of the grant, to offer the students at such college instruction in military tactics, but remains free to determine the branches of military training to be offered, the content of the instruction, and the objects to be attained; whether the state becomes bound to require the students to take the training is a question not involved in the present case. P. 293 U. S. 258."

That's for my many critics, and I could also include a half dozen paragraphs of the decision, but instead will summarize:

Land Grant Colleges established under the first (1862) Morrill Act (and I believe the latter two as well) are *required* to offer ROTC and I don't believe they now have the curricular flexibility that that the court mentions, in part because the National Guard replaced the local militia in the 1970s. Back in the 1930s, as the court notes, ROTC training also produced police officers.

Second, one will note that this requirement was only applied to "able-bodied" male students as it it was a Physical Education requirement as well -- which many colleges retained after making ROTC optional. Well into the 20th Century a lot of Land Grant Colleges (and normal schools) required students to take a Phys Ed class, I believe that MIT (a Land Grant College) still addresses this by requiring all students to play *a* sport.

Third -- and perhaps most important -- this case upheld the right of the legislature (in this case via delegation to the Regents) to stipulate mandatory courses at the state university. What we're going to see before long is a move beyond where DeSantis is prohibiting the teaching of certain things and an actual requirement that certain things *be* taught.

Yes, a mandatory course on patriotism and/or the benefits of capitalism -- Texas *already* has a law mandating this be taught in K-12 school, a vague "shall be taught" statute. I can see something very similar to ROTC (as it exists today) -- a curriculum outside of the university's control -- becoming a mandatory couple of classes that every student must take.

I can also see a "contract" similar to the ROTC contract (of today) which stipulates that the Army provides a officer (usually O-4 or O-5) to command the ROTC program which the university then accords full faculty status with all the rights and privileges thereof, the university provides classroom and office space and the Army provides (or pays for) all of the instructors, equipment, and incidentals. The university lets them land helos on campus for training exercises but the Army deals with the FAA and everything else.

Hence what you have is a curriculum (series of courses) that is outside of Faculty Senate approval, and tenured faculty that are outside the institution's tenure review process. This is a really big thing in that it allows a curriculum that is exempt from the influence of the faculty, taught by people who could never be hired as faculty. (It's what John Silbur couldn't accomplish at BU.)

And I can see it not being popular in certain quarters, but as the Court points out here, the Federal government has the authority to do this as conditions of receipt of Federal funding, and states have that right as it is a state university.

As an aside, "normal schools" are teacher's colleges that started with Horace Mann's attempt in the 1830s to standardize the training of elementary school teachers. With notable exceptions (e.g. UMass Lowell, formerly the University of Lowell), most state colleges and universities started out as either a normal school or Land Grant college. I believe that what is now Framingham State University was the first public normal school.

[Dan Schiavetta]

Often, when the state dictates what can and cannot be taught, the students end up being more ignorant and prejudiced. This is what DeSantis is doing. It was Silber was after and he was quite upfront about it. His profile in the New York Times was notable as containing interviews with professors who spoke only with anonymity because they feared his retribution. I never saw that before.

I was visiting Boston in that era and he had recently forbidden overnight visitors in the dorms. One of the undergrads hung a banner outside his/her room: “Get the Prez out of my bed!”

“Taught by people who could never be hired as faculty” means, of course, people who were unqualified.

I did get you to read that case and I do appreciate you giving a thorough account of it.

I went to a state university in the 1970’s. It (and the other colleges in the system) were called “Teacher’s Colleges”, f.k.a. a “normal school”. It was a drug-addled era and the joke was that it had become an “abnormal school”.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You may have a different interpretation of "qualified" if you think gender fluidentity professors are qualified for anything useful.

“Taught by people who could never be hired as faculty” means, of course, people who were unqualified.

[Dr. Ed 2]

“Taught by people who could never be hired as faculty” means, of course, people who were unqualified.”

It depends how one defines “qualified.”

The current faculty track (at least outside law & medical schools) is based on repeated peer approval which has nothing to do with actual teaching ability. Grad school is a filter, as is the junior faculty and this is how we wind up with a professorship that is 99% to the Left of Lenin.

Maybe not that much, but the social conservatives are all in the think tanks because they have no chance in the universities. Qualification is independent of this — there are people more qualified than most professors, except that they don’t have a CV that would justify hiring them *because* they were shunned & shunted over to the think tanks.

The point I quietly keep making to the people proposing various courses is that who you have teaching them is far more important than what you require be taught and John Silbur is not the only one to have made that mistake. 30 years ago, Massachusetts had education reform and it was totally sabotaged by the Mass Teacher’s Association.

And bear in mind the fact that the *college* doesn’t evaluate the ROTC professor doesn’t mean no one does — the Army does, and it has a vested interest in having a quality program. These are all officers with a commander supervising and evaluating them.

What I meant was “never hired as faculty through the traditional faculty-hiring process.” It’s like the alternative certification program for STEM high school teachers (e.g. Chemistry & Physics) — take engineers with experience in industry and let them start teaching immediately on a provisional license while they take methods courses in the summer.

What I’m proposing is not only having the state impose mandatory courses on the universities, but to also tell the university who will be teaching them (and perhaps, like ROTC, have the related budget lines completely independent of the university). *Not* that these people will be unqualified but that a different entity will determine their qualifications.

“Often, when the state dictates what can and cannot be taught, the students end up being more ignorant and prejudiced.”

How well would a patent lawyer be at criminal defense, or a criminal defense lawyer be a patent law? And how good a job could a professor of one do teaching the other?

The biggest problem with mandated courses is twofold — the people who wind up teaching the mandated subject know very little about it, and the people who mandate it (e.g. Desantis) know little to nothing about curriculum and pedagogy. This has long been a problem in high schools where the most common first name for a Social Studies teacher is “Coach.” (I.e. they hire the person as a coach, but have to give him/her/it a teaching position to have a livable salary.)

The second issue is that if you vehemently oppose what you are teaching, it is incredibly easy to sabotage the teaching of it. And what accountability can you have when the instructor’s supervisor also vehemently opposes teaching the mandated curriculum?

“I was visiting Boston in that era and he had recently forbidden overnight visitors in the dorms.”

I would have done that at the time, and you would have too. The problem with overnight guests is like overnight parking — you soon get a car that is never moved and may not even run, and I strongly suspect Silbur’s real issue was the non-students living in the dorms.

I was very young at the time, but I remember reading a newspaper article about BU students throwing “flaming tennis balls” down at pedestrians on the street below, and a parakeet kept so stoned that “the bird apparently liked it.” Silbur was trying to elevate BU’s reputation above that of a “streetcar college” and hence had to do *something* about this sort of stuff….

And my student affairs experience tells me that the non-students living in the dorm weren’t Boy Scouts. Insecure women have a really bad habit of acquiring “bad boy” boyfriends and never forget that the “women” pictured in the classic Kent State Shooting photo actually was a 14-year-old runaway.

So while some of this was Dick and Jane having fun overnight, my guess — just a guess — is that the real concern was the people who weren’t just there overnight. You’re a lawyer, you understand “liability”, right?

And today, in college, Dick & Jane have fun in the afternoon as well...

[SRG2]

There are alternative explanations for the relative scarcity of conservative academics in many fields. For example, salary - if academic posts, except at the very top, aren't as well paid as white-collar professions, conservative potential academics may be relatively more reluctant to go into academia - in which case they have absolutely no right to complain about the disproportion.

Also in some disciplines, some conservatives will be excluded - e.g., a creationist will have problems, quite correctly, in being hired to a biology position.

[Dan Schiavetta]

Legitimate research requires qualities -- such as being widely read, admitting mistakes, seeing where "the other side" is coming from, willingness to experiment, getting information from different sources, distrust of the pronouncements of Authority (for example, the Catholic Church, or the Bible, or more recently, Trump) -- that are increasingly rare among conservatives. Not all left-wingers arrive at their viewpoints by being knowledgeable (to state the obvious), but in general, to be well-informed means to be more liberal.

[Dr. Ed 2]

Are you serious?!?

The "academic" of the 21st Century is the most closed-minded ideologue the world has ever seen. They have the "correct" viewpoint on everything -- they don't understand their view let alone have the ability to defend it, but they have the "correct" one.

Electric cars are a good example -- they think they can just plug them in and the electricity will magically appear because electricity comes from pixie dust and unicorn flatulence. Their purported "research" is more politically biased than it was in the Soviet Union.

They hated Trump and Bush '43' before him without any idea why beyond a sophomoric "Orange Man Bad." And they are even more loyal to (and controlled by) their religion of neo paganism than my Puritan forebears were.

[Dan Schiavetta]

According to the most recent survey, 69 percent of math professors viewed themselves as "liberal". I was a math major and I don't remember any ideological leanings in differentiating calculus integrals. Math is Truth -- you can't put a spin on it.

The ideological tendency is true across the board, though it is somewhat less true in economics, where billions of $ from capitalists have financed enough "scholarship" to tip the balance a little the other way.

[defaultdotxbe]

One thing I would note is that the political left in the US was liberal for so long that "left = liberal" has become dogma, but the left is becoming increasingly Progressive, which is as illiberal as conservativism.

[Dr. Ed 2]

The Liberals of the 1960s often were liberal, I've met a few of them and while I didn't always agree with them, I could respect them. But they've all retired now.

The Leftists of today -- I don't even call them "Liberals" -- are way too fascist to be considered liberal. We can argue all kinds of definitions for fascism but the most simple is what it is *not* -- separating the individual from the individual's argument.

A professor once explained it as being "the liberal won't kill someone for a good cause" -- the liberal places a higher value on the life of the individual than defeating the individual's argument. A true (small "l") liberal would never "dox" someone, never try to get the person fired because of the person's beliefs or arguments, no matter how offensive.

Liberalism ended when the personal and the political became commingled. Antifa is inherently fascist, everything they do is fascist, and fascism is not a left versus right axis but instead one in another dimension, respect for other individuals versus not.

[David Nieporent]

.

They hated Trump and Bush ’43’ before him without any idea why

You're projecting.

[Dr. Ed 2]

You've never lived in Amherst....

[The Margrave of Azilia]

"being widely read, admitting mistakes, seeing where “the other side” is coming from, willingness to experiment, getting information from different sources, distrust of the pronouncements of Authority"

So...anyone on the left who fails to exhibit these qualities is...anecdotal and atypical?