Friday, October 22, 2021

When Is a Crisis with Intergenerational Effects Not an Intergenerational Crisis?

by Neil H. Buchanan
In March 2020, Texas's troll-cum-Lieutenant Governor Dan Patrick made news by saying that old people should be willing to die so that their kids and grandkids would not suffer a loss of income.  Am I trying to score cheap points by exaggerating or distorting what he said?  I might be putting it less politely, but that was most definitely his point.  Appearing on one of the evening Fox News dumpster fires, Patrick said:
No one reached out to me and said, "As a senior citizen, are you willing to take a chance on your survival in exchange for keeping the America that all America loves for your children and grandchildren?" [But if] that is the exchange, I’m all in. ... I just think there are lots of grandparents out there in this country, like me, I have six grandchildren, that what we all care about and what we love more than anything are those children. ...  So my message is let’s get back to work, let’s get back to living. Let’s be smart about it and those of us who are 70-plus, we’ll take care of ourselves. But don’t sacrifice the country, don’t do that, don’t ruin this great America."
In my Dorf on Law column last Friday, I mocked Patrick's statement, which actually ran much longer than the quotation above but never said anything more than "economy good, death happens, oh well."  This was relevant because I was discussing the question of whether COVID presents a crisis that is intergenerational in the same sense that the climate disaster and the death of democracy are intergenerational.

I concluded that COVID is not an intergenerational crisis, even though it is very much a crisis on its own terms.  Today, I am going to give the Patrick point of view, or a non-cartoonish version of it, a fuller hearing, because although the point as he made it is horrifying, there is at least a plausible question about whether the differences in the coronavirus's threat to different age groups should cause us to think about this crisis in a different way.

My bottom line: Patrick is (still) a sociopath, and even though there are generational differences in COVID's affects on people's lives, this is still not an intergenerational crisis.  Side point: Even if COVID were an intergenerational crisis, that would not change how we should think about intergenerational crises.
Intrigued?  Or perhaps confused?  I sympathize.

Thursday, October 21, 2021

Judge Bill Pryor and the Law Clerk: Cancel Culture, Judicial Ethics, and Racism

 By Eric Segall

There is little dispute that cancel culture in legal academia and elsewhere is at the least controversial and at the most quite dangerous to freedom of speech values and academic freedom. In just the last few weeks, a University of Michigan professor got in trouble for showing the 1965 film Othello starring Sir Laurence Olivier (considered by many the greatest actor ever) in blackface. The Chaired Professor issued two apologies and had to cancel classes after students complained. And, there was yet another major dust up at Yale Law School involving a student who invited others to a "trap house" party where "Popeye's chicken, basic-bitch-American-themed snacks (like apple pie, etc.)" and hard and soft drinks would be available. 

The term "trap house," according to Eugene Volokh, "originally referred to crack houses in poor neighborhoods, has, according to Urban Dictionary, 'since been abused by high-school students who like to pretend they're cool by drinking their mom's beer together and saying they're part of a 'traphouse.'" Although the reports are somewhat conflicting, it appears Yale administrators strongly encouraged the student to apologize and suggested not doing so might hurt his career.  

Virtually every other day on the Volokh Conspiracy website one can find stories of people being criticized, harassed, or even fired or punished for some form of speech some people find offensive. It is my view that the general remedy for such behavior is more speech, not official sanctions, depending, of course, on the specific behavior at issue.

But while all of this is going on, there has been awful conduct by the Chief Judge of the Eleventh Circuit Court of Appeals Bill Pryor who, because of life tenure, is not subject to official punitive sanctions, but reveals in an awful way how racist our society continues to be. Although the Washington Post, Above the Law, and a few other outlets have covered the story, the attention has not been serious enough, and I fear the passage of time will remove this debacle from the news cycle. That would be a terrible mistake.

Wednesday, October 20, 2021

The Political Psychology of Fiscal Numerology - Debt Ceiling Edition

 by Michael C. Dorf

Last week I joined Congressman John Yarmuth as a panelist in a program moderated by former Congressman Steve Israel as well as my Government Department colleague Professor Doug Kriner and Erin King Sweeney, who serves as senior associate director of Cornell's Institute of Politics and Global Affairs, which sponsored the event. The panel discussion had been set up a week earlier, when it appeared that it might be occurring just as the global economy was melting down under imminent threat of a U.S. default on its debt obligations.

The short-term increase in the debt ceiling somewhat alleviated the sense of immediately pending doom, but the timing was nonetheless noteworthy because earlier that day Congressman Yarmuth--who chairs the powerful House Budget Committee--announced that he would not seek re-election in 2022. Although Yarmuth is the sole Democrat in Kentucky's delegation, his seat is unlikely to turn red even after redistricting, because his district already reflects the Republican state legislature's efforts to "pack" Democrats from Louisville and environs into a single district, thus rendering the rest of the state's delegation safely Republican.

Nonetheless, Congressman Yarmuth's retirement will be a major loss for the Democratic Party and the country, as he is a dedicated and highly effective public servant. During our discussion, he made some statements endorsing so-called modern monetary theory with which I disagree, but we were in complete agreement on everything directly related to our subject: the debt ceiling. Interested readers can watch the video of the hour-long program here.

In the balance of today's essay, I want to explore a couple of puzzling claims that Congressman Yarmuth made about political psychology--claims I have no reason to doubt, as I trust his own political sense more than my own. My goal, then, is not to question the claims but to explore them.

Tuesday, October 19, 2021

Abortion and the Free Exercise of Christianity

 by Sherry F. Colb

At times, it must seem to many Court-watchers that abortion is its own body of law, separate from the other areas in which the nine Justices issue opinions. And this term, the Court will be hearing an abortion case, Dobbs v. Jackson Women's Health Organization, a case presenting the question whether banning abortion starting at fifteen weeks violates the Constitution. But for this Court, its view of abortion is very much linked to its view of a whole other body of law, the Free Exercise of Religion in the First Amendment to the Constitution. I have an article coming out in the North Carolina Civil Rights Law Review in the Spring that explores the Court's thinking in the realm of religious liberty. But here, I will offer a brief description of my theory and then apply it to abortion and show that it fully explains where the Court is heading on the right to choose.

Monday, October 18, 2021

If Changing Judges Changes Law, Is the Supreme Court a Court of Law?

 By Eric Segall

Retired Judge Richard Posner once said that, “if changing judges changes law, then it is not clear what law is.” There can be no dispute that the Supreme Court of the United States changes law all the time and on extremely important questions that affect all fifty states and over 300,000,000 people. These changes most often occur without any amendments or newly discovered historical materials. I demonstrate this claim below and then offer a few observations about what it all means.

Friday, October 15, 2021

Justice Between Generations in an Unjust World

by Neil H. Buchanan
I am back to thinking about intergenerational justice.  This is a topic about which I have written extensively over the last decade-plus, and because I am once again delivering some public and academic lectures around the UK and EU this Fall, I have had reason to return to writing about it -- with the further goal of at long last finishing my book project: What Do We Owe Future Generations?
Yesterday, I published a new Verdict column: "Three Threats to Future Generations: Should COVID-19 Change Our Thinking About Climate Disaster or the End of Democracy?"  As I will shortly explain, I attempt in that column to sort out whether the COVID-19 crisis should change the way we think about the two biggest pre-existing threats to future generations: environmental catastrophe and the death of constitutional democracy.  Short answer: No, it does not.

Why think about any of this?  After all, it is now completely clear that our environmental and constitutional crises are nonstop disasters, with no end or even mild mitigation in sight.  Even so, for some purposes, it does not matter whether there is any hope for a better outcome on either score.  That is, even if we end up living in a malign dictatorship that does all it can to deny and speed up environmental disaster, there will nonetheless continue to be issues that might or might not have intergenerational justice implications.

If nothing else, then, I might have something useful to do with my time, in a few years when King Donald II has assumed the throne.  Even if there is no way for anyone -- certainly not scholars -- to change policies in such a dystopia, it will be interesting as a descriptive matter to be able to say: "Initiative X, proposed by Jared the Jester, will not have uniquely bad effects on future generations, even though the current effects are disastrous."  Or the opposite, or something else entirely.  The point is that even policies adopted in an anti-democratic, dystopian hellscape might or might not have intergenerational effects.

How should we think about this?  The threshold issue is to determine how we can distinguish between policy analyses that do and do not meaningfully change when we think about future generations.  I raised that issue in my Verdict piece, and I reached what might seem to be a counterintuitive conclusion.  (At least, one of my research assistants told me that she was taken by surprise.)  I argued that the COVID-19 pandemic is not a new crisis that should change the way we think about the two big intergenerational crises.
Am I truly saying that the worst pandemic in more than a century is not a crisis?  No, but I can see why it might have come across that way.

Thursday, October 14, 2021

How Sincere are Religious Objections to COVID-19 Vaccination?

 by Michael C. Dorf

Under federal and state constitutional and other law, when a person claims some entitlement in virtue of a religious belief, neither courts nor other governmental actors challenge the truth of the belief, but in principle, they may question the sincerity of those beliefs. I say "in principle" because recent cases involving claimed religious objections to public health and other measures appear to take such objections at face value without properly scrutinizing them for sincerity.

Here I'll focus on Tuesday's opinion by Federal District Judge David Hurd in Dr. A v. Hochul, granting the plaintiffs' motion for a preliminary injunction against New York's application of its COVID-19 vaccination mandate for health care workers to ostensibly religiously scrupled plaintiffs. In the course of the ensuing discussion, I'll have occasion to observe that the truth and sincerity inquiries may not be entirely possible to disentangle.