Tuesday, September 17, 2019

Anti-Tax Populism versus the Actual Boston Tea Party (and History in General)

by Neil H. Buchanan

This past weekend, I was in Boston for the first time in a few years.  Because I had never gone to any of the local tourist attractions during the ten years that I lived there, my brother and I decided to go to a few of the Revolutionary War-era sites that are scattered around the area.  I was not expecting to end up with fodder for a column here on Dorf on Law, but I guess this proves that I am never truly off the clock.

In any case, I found it interesting to compare and combine the information provided at two historic sites.  The Boston Tea Party site includes a replica of one of the merchant ships involved in that historic moment, which was included as part of a guided tour of an onsite museum/tourist attraction.  A few miles away, the Bunker Hill site in Charlestown included a demonstration of musket firing along with narrated information about the battle there in 1775.

As I will explain below, there is an interesting difference between the way the two historic sites treat the supposedly anti-tax message of the American Revolution.  But even taking those differences into account, the overall conclusion is that modern conservatives have (deliberately or not -- but probably deliberately) mangled American history in the service of their present-day reactionary agenda.

Monday, September 16, 2019

Joe Biden, Hipster

 by Michael C. Dorf

"It's not [that poor parents] don't want to help. They don't — they don't know quite what to do. Play the radio, make sure the television — excuse me, make sure you have the record player on at night, the — the — make sure that kids hear words. A kid coming from a very poor school — a very poor background will hear 4 million words fewer spoken by the time they get there." -- former Vice President Joe Biden at the Sep 12, 2019 Houston Democratic Presidential Debate in response to the question "what responsibility do you think that Americans need to take to repair the legacy of slavery in our country?".

Hey America, it's me, Joe Biden, Uncle Joe as a lot of the young folks call me. So listen, I've been reading where people say I'm out of touch, but the truth is I'm only a hair older than Bernie and uhm, the Senator from, uhm, the woman from, my friend . . . Elizabeth! . . . and of course Donald B. Trump.

What a bunch of malarkey. I'd beat any of them in a foot race, a game of darts, or one of those electronic measuring fitness thingies on that what is it called? Wii consoles.

So anyway, I read somewhere they're saying that no one uses record players anymore and this means that I'm not ready to lead America into the 25th century. That's double malarkey. Hippies, excuse me, hip stars, hip stirs, yes hipsters have record players. Or as we called them when I was growing up as a white working class boy in Scranton, phonographs.

Friday, September 13, 2019

Why Are Big Businesses' Executives So Awful Except When They're Not?

by Neil H. Buchanan

When I linked to The Washington Post's website moments ago, a bright red CNN-like banner above the name of the newspaper announced:


The linked article's sub-headline reads: "Faced with pressure to curtail suspicious opioid shipments, an alliance fought back with every weapon at its disposal."

Another day, another example of grotesque corporate greed and soullessness.  There is a reason that Big Pharma has joined Big Banks, Big Airlines and the more general Big Business as bogeymen for any American with even a mild dollop of populist sentiments.

And all of those Big institutions, in turn, have been responsible for some truly awful things, most especially including a sustained and highly successful political attack on labor unions, which led to companies underpaying workers and backing (and largely writing) laws that enable various strategies to deny benefits and so on.  Epic inequality did not come out of nowhere.

I say all of this to make clear that I do not have a soft spot in my heart for large corporations.  I am, however, interested today in the phenomenon of big businesses occasionally doing surprisingly positive and even progressive things, the most recent example having to do with guns.

Thursday, September 12, 2019

The Myth of the College or University Professor Uninterested in Teaching

by Michael C. Dorf

From time to time I hear from former students. Whether they are reporting on their successes (or much less frequently, their challenges), seeking a reference for a job, or asking for my advice on a case on which they're working, I'm almost always glad to hear from them--although my policy with respect to advice on cases is to help only with matters that they are handling pro bono and then only if they've cleared my involvement with the client and/or the lead attorney. Occasionally, a student will write a simple note of thanks, which is invariably gratifying. Sometimes the note of thanks is a backhanded compliment, as in "I'm surprised that something I learned in your class turns out to be useful in practice."

Very occasionally I receive a note like the one I was incredibly gratified and humbled to receive last week, from a recent graduate just generally thanking me for my guidance. When that sort of thing happens, I usually feel some regret at not having done the same for the teachers and mentors who were instrumental in my own intellectual and professional development. Because they are no longer with us, I think in particular of Dan Meltzer, whose Federal Courts class thirty years ago influences mine just about every day, and Judge Stephen Reinhardt, who taught me that anything worth writing is worth rewriting ten or twenty times. I wish I had been more gushing in my thanks when they were alive.

I was extremely fortunate to have been taught by great scholars who were also great teachers, people like Bernard Bailyn, Larry Tribe, Robert Nozick, Stanley Hoffman, and Judith Shklar. I also took courses from lesser-known scholars and sections with grad students just getting started who were terrific instructors. Whatever skill I have as a writer I owe chiefly to my seventh and eighth grade English teachers (Ms. Green-Lee and Ms. Petersen, whose first names I don't recall and may never have known). I also had some not-great teachers, including some who were renowned scholars.

My own experience as a student turns out to be fairly typical. I had great teachers who were also great scholars. I had not-so-great teachers who were great scholars. I had great teachers who were not-so-great scholars or not scholars at all. And I had not-so-great teachers who were not scholars or not-so-great scholars. There was for me, as in general, no correlation between teaching and scholarly acumen.

Wednesday, September 11, 2019

Bolton Was Awful; His Successor Could Be Worse

by Michael C. Dorf

What should a reasonable person think about the departure of John Bolton as National Security Adviser? In just about any other administration, it would be very welcome news. Bolton is a Strangelovian hawk who learned nothing from the US misadventure in Iraq that he and others of his ilk promoted. Trump reportedly fired him (or was at least happy to see him go) for the right reason: Bolton was a source of resistance to one of Trump's few sensible impulses--his preference for diplomacy over force in foreign affairs.

And yet . . . Bolton probably provided a useful check on Trump's not-at-all-sensible foreign-policy impulses: his emphasis on showmanship over substance; his elevation of personal relations with foreign leaders over details; his embrace of authoritarians at the expense of liberal democratic values and human rights; and his desperation to "make a deal" so that he can claim victory even when the deal at hand is a bad one or at best a worse version of the prior status quo that Trump impetuously undermined.

Tuesday, September 10, 2019

The Paradoxically Perfect Millennial as a Cover for Republicans' Attacks on Higher Education

by Neil H. Buchanan

Virtually nobody talks about how responsible and well behaved millennials are, not even millennials themselves. As with all younger generations, there are complaints from oldsters like me (but not including me) about how shallow and pampered "kids today" can be.  Why can't they be like we were ... perfect in every way?

Even so, there is a subset of millennials who have suddenly become the poster children for the argument not to do anything about student debt and high tuition costs.  As I noted in my most recent Verdict column last week, there is a new refrain from those who are looking for an excuse not to have the government fix the mess that higher education financing has become in the last generation, which is that some young people did it right, and it would be unfair to those responsible young heroes to make it easier for anyone else.

This is, of course, a shamelessly opportunistic argument on the part of the Republicans, who think that subsidized higher education is just another form of (cue the scary music) socialism.  They could not care less about poor kids who somehow manage to work three jobs while going to school and graduating -- in part because almost no such people exist.  The reality is that college is now so out of reach (due in large part to Republicans' budget cutting at the state and federal levels) that fewer and fewer kids from modest beginnings can finish college.

But what of the few -- and for all we know, it might be only one hardy soul -- who "did everything right" and got through college without debt (and without any help from anyone else, i.e., they did what was literally impossible by "pulling themselves up by their own bootstraps")?  Should our admiration for such sacrifices make us decide to do nothing about those who were not able to reach that happy result?  Should we decide not to adopt a new program that would deliver better results?

Referring to those few people who (much like the perfect millennials) somehow manage to get through a medical crisis without being driven into bankruptcy, I noted in my Verdict column that they might respond to a new program that makes it easier for people in the future to deal with these financial challenges: "Gee, I wish this new program had existed back then.”

And that is understandable.  I argued that that is not, however, an excuse to do nothing now, because "that is simply how change works. Using it as an excuse to do nothing elevates individual pique and resentment above social and economic progress."  Why would someone say, "No, you can't make anyone's life better than mine was," rather than, "Wow, it's so great that no one will have to go through what I went through ever again"?

Monday, September 09, 2019

A Unified Theory of Originalism and Living Constitutionalism

By Eric Segall

A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article:
Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.'
There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference), Barnett and Bernick have articulated a powerful guide for judges to use to decide whether laws violate the Constitution.  But like most originalist scholarship that does not include strong deference, what Barnett and Bernick are suggesting is indistinguishable from how most so-called living constitutionalists think judges should decide cases. They could have titled their piece "A Unified Theory of Judicial Review for Originalists and Living Constitutionalists," and they would not have had to change a single word.