Giving Thanks when Thanks are Hard

 By Eric Segall

Thanksgiving has always been a special time for my family. My mother's birthday was November 22, and my parent's anniversary was November 25. My mother passed away a few years ago but my dad is still going strong at 91. Thanksgiving was our one sacred time time together when my brother and sister's families as well as mine would all get together with our parents. This is the first Thanksgiving I won't spend with my siblings and at least one of my parents in decades. Like millions of Americans we will zoom, but it will not be close to the same. Giving thanks can be hard.

Nothing in 2020 has been the same. Trump, the pandemic, George Floyd, and numerous other sad events have changed our lives dramatically. There has been a twitter saying since shortly after Trump was elected that "there is no bottom." That is true of Trump and his enablers, but not for America, and eventually the pandemic will pass and racial injustice will slowly get better. 

So even though is is hard, I'd like to say in this post what I am thankful for in addition to of course my family, friends, and colleagues. Without them, there really would be no bottom, especially my family. Lynne and my three daughters make me smile every day, and they have been amazing during these arduous 8 months or four years depending on how you count.

Doing One's Job Is Not A Low Bar In Times Of Crisis

by Michael C. Dorf

As Thanksgiving approaches, I want to express sincere gratitude to Republican public office holders who carried out their legal duties despite enormous pressure to participate or acquiesce in Donald Trump's scheme to end American constitutional democracy. The list is long and includes a great many people whose names are not widely known (a fact for which they are no doubt grateful). Most prominent among those whose names we do know are: Georgia Secretary of State Brad Raffensperger; Philadelphia City Commissioner Al Schmidt; Michigan Vice-Chair of the Board of State Canvassers Aaron Van Langevelde; the four Republicans on the five-member Maricopa Board of Supervisors; Federal District Judge Matthew Brann; and US Senators Susan Collins, Lisa Murkowski, Mitt Romney, and Ben Sasse. Thank you to all of them and to everyone else who put duty first.

In recent days I have seen it said that one should not be praised simply for doing one's job--that this is too low a bar. I strongly disagree. When a mob led by the US President threatens your livelihood, your life, your home, and your family, it takes enormous courage to do one's job with honesty and integrity. We rightly deem soldiers who do not flee in the face of the enemy brave, even though desertion under fire would be unlawful. Likewise here.

Trump Has Damaged His Followers' Ability to Make and Understand Reasoned Arguments

by Neil H. Buchanan

 

Back in June of 2016, I pointed out that Donald Trump had created an entirely argument-free version of political campaigning.  I compared Trump's type of logical error to the standard Republican type of logical error.  Although I did not at that point use these labels, it makes sense to contrast Republican illogic with Trumpian non-logic.

The difference is that Republicans typically have at least a story to tell that connects premises to conclusions.  Referring to the example of the infamous Laffer Curve, I noted that the Republican argument goes like this: "Tax cuts cause people to want to work more and businesses to expand, so the economy grows, and indeed it grows so much that total tax revenues rise despite the lower tax rates on each dollar in that expanded tax base."  Could be true.  Not true, at all, as proved again and again and again; but could be true.  They are being illogical because they insist on repeating the story notwithstanding its having been debunked.  It is, in Paul Krugman's memorable description, a zombie idea.

 

In contrast, Trump says things like this: "We're going to have a tremendous new health care plan that will cover everyone and be much cheaper."

That non-logic is not testable or subject to logical investigation, because there is nothing to test and verify -- except to note that the magical plan never materializes, as a matter of empirical observation.  And speaking of reality, Trump also became famous for saying things that are demonstrably untrue even in the moment, refusing to retract or correct even when called on his detachment from reality.

 

From claiming to have signed laws that were passed before he took office to falsely claiming that the Dominion voting machines company is owned or influenced by the Radical Left (which is who, exactly?), Trump simply says that up is down and night is day.  Those infamous alternative facts, after all, were not limited to crowd size but even included lies about the weather.

Now, we are seeing how Trump's huckster-inspired strategy of skipping past logic and evidence, and simply choosing to live in a reality-resistant "It's true because I say so" universe, has affected his followers.  Every day it becomes more and more ridiculous, and more and more dangerous.

A Good-Faith Exception for Unlawful Voting

by Matthew Tokson

On Saturday, eight Republican electors in Pennsylvania sued in state court, asking a judge to throw out all 2.5 million Pennsylvania mail-in votes. The plaintiffs claim that Pennsylvania’s 2019 mail-in voting law is unconstitutional because the Pennsylvania Constitution implicitly limits absentee voting to specific circumstances. Similar suits have been filed in several other jurisdictions. Rudy Giuliani’s federal suit currently on appeal seeks to invalidate all 6.8 million Pennsylvania votes based on an alleged Equal Protection Clause violation. And a rejected Texas lawsuit sought to throw out 100,000 votes cast at drive-thru polling stations, claiming that such voting violated Texas law. 

Set aside laches and the profound weaknesses of the merits claims in these suits. Assume that the challenged elections provisions—and the votes cast under them—were unlawful. How should a court think about voter reliance on existing law and the appropriate remedy for when unlawful votes are cast?

The exclusion of evidence in the Fourth Amendment context may provide an analogy. 

Another Way The State Legislature Scheme To Steal The Presidential Election Would Be Illegal

 by Michael C. Dorf

After meeting with President Trump on Friday, the Republican leaders of the Michigan legislature--Mike Shirkey, the State Senate majority leader, and Lee Chatfield, the speaker of the Michigan House--reaffirmed their commitment to following the law, under which the state's Presidential electors will be certified for the winner of the state's popular election. I hope that their statement spells the beginning of the end for Trump's grotesque gambit to enlist Republican-led state legislatures in facilitating a bloodless coup.

However, there are reasons to remain gravely concerned, especially if, later today, the two Republicans on the Michigan State Board of Canvassers accede to their party's outrageous request for a two-week delay in certification of the state's election results based on minor and routine discrepancies fronting for racist conspiracy theories. To be clear, that move would not by itself deprive Joe Biden of Michigan's electors, much less the Presidency, but it would embolden Trump and his enablers. If you give a mouse a cookie, he's going to ask for a glass of milk. If you give a malignant narcissist a two-week delay, he and his brownshirts are going to try to extort (at least) four more years of his destructive reign.

Accordingly, I think it is premature to judge Trump's scheme to steal the election through GOP-controlled state legislatures dead. It therefore warrants continued legal analysis, even as I fervently hope that what I write here ultimately proves to be of merely theoretical interest.

Women, Animals, and Victim-Blaming

 by Sherry F. Colb

(The following is the text of a talk I gave on Monday on a panel sponsored by the New York City Bar.)

When I was in law school, a brave classmate spoke openly of a marriage in which her husband regularly abused her. I realized as I listened that I had stereotypes of battered women in my mind. I was surprised to hear what she said because she did not seem like the sort of woman who would find herself in an abusive relationship. She was eloquent and strong and extremely intelligent. I looked up to her and admired her as a leader. What could have possessed her to absorb abuse? And what exactly did her husband do to her?

We can recognize this kind of thinking as victim blaming. We find out that a person is enduring cruelty and abuse, and we ask, “Why haven’t you left?” or “Is it really that bad?” instead of assuming that she has her reasons and that it is her abuser rather than she who has some explaining to do. As a good friend of mine said recently, if we blame the victim, then we can pretend that we are safe. It is an understandable human impulse. A colleague of mine died of lung cancer a few years ago. Almost everyone wanted to know whether she smoked. (She did not). But what if she did smoke? Then we could tell ourselves we would be fine because she brought it on herself by smoking. We don’t really believe that she deserved to die because she smoked, but we place distance between her and ourselves by identifying things that she did to increase the odds of her illness.

In the case of my classmate, the reason I think it was “brave” for her to talk about the abuse she suffered is that she was surely conscious of the stereotypes. And I imagine she had internalized the shame that goes along with victim blaming. She probably told herself at times, “I chose to marry him, so maybe it’s my fault. I must deserve it because I haven’t left.” It is risky to reveal something about yourself that people tend to judge. If you doubt that women feel shame after abuse, just watch the makeup tutorials online that let victims know how to conceal their injuries. When a woman says “I just walked into a wall,” it is not only to protect her partner; it may be to protect herself from judgment. How people react will depend a lot on how committed they are to the stereotype, and it is hard to know that in advance.

Trump's Remaining Coup Options are Daunting — but Scary

by Neil H. Buchanan

 

While he was frantically running around the country at the end of his losing reelection campaign, Donald Trump continually told his audiences that the media were pushing the coronavirus story simply to hurt him.  He predicted that, come November 4, we would stop hearing anything about COVID-19.  It is worth noting, then, that Trump's paranoid sense of victimization was wrong again.  The pandemic is raging, and the press is covering it aggressively, even after he lost.

 

The problem is that Trump and the Republicans are doing their best to push that story aside by making news of the worst sort: attempting to destroy constitutional democracy.  (Trump also is now claiming credit for progress on vaccines, and Donald Trump Jr. has claimed that Pfizer withheld its positive announcement until after the election to hurt his father.  A chip off the old paranoid, self-pitying block.)

 

But is the Trump coup attempt dead in the water, as much of the media discussion assumes?  Of course not.  As I will explain here, his remaining options are long shots, but in some ways that makes them even more worrisome.  At best, the outcome will be a Biden presidency that must constantly fend off attacks on its legitimacy.  At worst, we will have a constitutional crisis over the next two months that could shake (and perhaps demolish) the nation's foundations.  How might that all play out?

 

Efficiency? I Do Not Think That Word Means What You Think It Means

by Neil H. Buchanan

I need to take a short break from following Donald Trump's ongoing attempted coup.  This is turning out to be every bit the existential crisis about which I and others have long warned; and even though people are currently (understandably) expressing confidence that Trump will ultimately fail, I still have serious doubts.  But that is for another day (probably tomorrow).  How about a palate cleanser?

As it happens, I have again been thinking about the incoherence of the concept of economic efficiency.  As Professor Dorf announced back in May, a new Buchanan-Dorf article is forthcoming in Cornell Law Review under the title: A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism.  Because of the long time frames involved in law review publishing, we are only now being asked to respond to the final round of editorial queries for the article.  (Our submitted draft can still be found on SSRN).

 

As Professor Dorf explained, and as I explored in two followup columns (here and here), our article describes the state of play in "originalism and textualism" (O&T) and "law and economics" (L&E), with the real oomph of the piece being our observation that conservative academics in those two fields make opportunistic and arbitrary choices that just so happen to lead to right-wing outcomes nearly every time, even though O&T and L&E should not on their own terms be so predictably parallel.  Worse, adherents of both categories of conservative theory loudly purport to be objective and non-ideological, even as they rely on plainly biased assumptions.  (I would say that the theories are "rigged," but Trump and the Republicans have taken that word away from us, at least for now.)

O&T (as the scandalously dishonest recent Supreme Court confirmation hearings in the Senate reminded us) claims that courts can be constrained in their interpretive efforts by being forced to adhere to the words of documents and their objectively determinable meanings, which supposedly means that judges cannot play fast and loose with statutes and constitutional provisions.  Meanwhile, L&E is based on an economic theory that says that the best approach to all legal and policy questions is to determine what the "efficient" choice would be.

Here, I want to return to the economic efficiency concept and explain why the L&E move (which is simply an adaptation of the framework invented by the group of economists known as neoclassicals) is truly an empty exercise within which anyone can embed their policy preferences.  I do so both to respond to an interesting objection that we have heard and because it turns out that even people like Chief Justice John Roberts understand (perhaps without realizing it) that the efficiency concept is incoherent and manipulable.