Parsing Posner's Peevishness

by Michael Dorf

The Autumn 2016 issue of the Journal of Legal Education includes a book review by me of Judge Richard Posner's book Divergent Paths: The Academy and the Judiciary, along with a reply by Posner. Overall, my review of Posner's book is mixed. Posner's reply begins with a gracious opening paragraph. It then argues that my review is unfair and wrong.

My review praises Posner as one of the greatest judges in U.S. history. I say that the book is "enormously entertaining and contains numerous nuggets of sound practical wisdom." I also praise Posner's basic decency as exhibited by his recommendations for the reform of supervised release of persons who have served their prison terms and various other positions he takes. I then discuss what I regard as the book's problems, including its cranky tone, its unfairness to particular scholars and to an entire branch of the legal academy (legal writing instructors), and the tension between Posner's chief proposal for the reform of legal scholarship and his chief proposal for the reform of law teaching.

My review is similar in tone and bottom line to the review that Professor Paul Horwitz wrote of the same book. I agree with Horwitz that Divergent Paths reads like "several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies."

Despite receiving two similarly critical reviews from readers who greatly admire Posner and much of his prior work, Posner thinks that I (and presumably Horwitz) have been unfair. Here I'll respond to eight of his specific complaints about my review before adding a concluding observation.

1) Posner says that my review isn't really a book review because it doesn't "give the reader of the review an idea of the scope and contents of the book," failing to mention that his Appendix D "lists 75 problems of the federal judiciary and 48 possible academic solutions, all touched on in the book." He also complains that I mostly focus on Posner's diagnosis of and prescription for the academy, while I "have very little to say about the judiciary." Yet all of Part I of my review is about the judiciary, though obviously not about everything Posner's book says about the judiciary. Posner is right that I don't address the vast majority of the problems he identifies and his proposed solutions, but I do try to characterize the book and then focus on Posner's core diagnosis and prescriptions. Here's the characterization from my review:

Posner thinks that too many judges either believe or pretend to believe in formalism, and that they passively rely on the adversary system to provide information it does not reliably supply. He also thinks that the courts are managed poorly. Then Posner suggests ways in which legal scholarship and education could be reformed to help address these problems: more legal scholars should study how courts and judges actually conduct their business, while collaborating on research projects with judges; legal education should give students a clear-eyed view of how law is made and applied, and it should be more practical. That’s merely a summary of a summary. Posner himself summarizes his diagnosis and prescription in a bullet-point list that covers seven pages.

Perhaps Posner thinks I've inaccurately summarized the book, but I didn't fail to summarize the book, as his reply contends. Authors of book reviews often use the vehicle as a means of discussing their own ideas, with the book itself receiving only glancing attention. My review of Posner's book, by contrast, focuses entirely on the book. It is much more of a review qua review than many of the essays posing as reviews one typically reads in, say, The New York Review of Books. For the author of a great many books, Posner seems surprisingly unfamiliar with the book review genre.

2) Posner chides me for failing to defend a number of works that he criticizes in Divergent Paths, but in so doing he misapprehends what I said in my review. My review observed that Posner's targets were odd because unrepresentative in various ways. For example, he used Professor Richard Fallon as a "whipping boy" (Posner's phrase) to illustrate the supposed uselessness of legal scholarship. In his reply, Posner insists that the passage he quoted from one recent Fallon article really is too difficult to follow to be very helpful to most judges but that he generally values Fallon's work. I'm glad that Posner has issued this clarification, but it vindicates my review: If Fallon generally produces high-quality work that judges (and others) value--as I agree Fallon does--then Posner should have chosen a different whipping boy or, better yet, not attacked a whipping boy at all.

Posner also believes that I should have defended a book by Professor Akhil Amar and another book by Professor Laurence Tribe against criticisms that Posner makes of them in one of his other books. To state the obvious, it is customary in book reviews to focus attention on the book under review, not the author's other works. Even so, my review cites eight of Posner's other books, as well as various of his opinions and articles.

3) Much of Posner's reply is misdirected. As just noted, Posner dares me to defend two books, one by Tribe and another by Amar, that Posner thinks are "dreadful." But my review doesn't say that Posner was wrong to dislike these books (just as I'm not now saying that he was right to dislike them). What I say is that Posner made an odd choice in singling out Tribe and Amar in order to criticize constitutional theory as useless to judges, because neither Tribe nor Amar is chiefly a theorist. As I say in my review, Tribe "built his reputation as a first-class constitutional scholar by writing a treatise, the kind of work that Posner describes as most valued by judges," whereas judges who "call themselves originalists" would likely be "intensely interested in Amar’s (sometimes surprising) historical discoveries." For Posner to demonstrate the uselessness of constitutional theory to judges, he would have done better to focus on the work of a constitutional theorist, like Professor Jack Balkin, Professor David Strauss, or the late Professor Ronald Dworkin. Maybe Posner would have been able to make his case; maybe not. But at least the target would have made more sense.

More broadly, Posner's criticism of selected works by Fallon, Amar, and Tribe exposes the weakness of his methodology. As I note in my review, there is an enormous volume of legal scholarship. A great deal of it is not very good. Much of it is not useful (and not intended to be useful) to judges. So what? Posner's claim that the legal academy does not produce sufficient scholarship of use to judges cannot be proven by pointing to the existence of what he deems unhelpful or bad legal scholarship, especially not when the authors of the particular works Posner criticizes have themselves produced other, high-quality work that is useful to judges. As I say in my review, "it is possible for there to be far too much of just about any imaginable kind of legal scholarship without any complementary shortage of any other kind of legal scholarship. Despite his admiration for quantitative empirical work, Posner makes no effort to quantify the volume of existing legal scholarship that is valuable to the judiciary." Posner does not answer or even acknowledge this charge in his reply.

4) In my review I say that Posner indulges his pet peeves, such as his hatred of the Bluebook. Posner responds by challenging me to defend the Bluebook. Yet this is as much of a non sequitur as his challenge that I defend the particular works of Fallon, Amar, and Tribe that Posner dislikes. What makes the Bluebook a pet peeve for Posner is not that he is necessarily wrong to criticize it. It's a pet peeve because Posner's pique is out of proportion. In a book that ostensibly addresses serious issues, Posner singles out the Bluebook for criticism 35 times on 17 different pages (as I calculated by searching for "Bluebook" in the Kindle version of Divergent Paths).

5) Posner seems incapable of confessing error, even when basic decency and intellectual honesty require that he do so. He asserts on page 336 of Divergent Paths that in "the typical first-year required writing course" students "are taught that legal argument is a specialized discourse, that its jargon must be embraced . . . ." My review notes that this is a calumnious charge. In fact, every reputable legal writing instructor in the country teaches students to avoid jargon. Posner's reply does not acknowledge that his book made the false statement about what happens in legal writing courses. Instead, he makes a semantic point about my review as though it were a substantive response. He says "it would be more accurate to say that some of the instructors try to discourage use of jargon, but judging from the number of jargon-ridden student law-review comments and judicial opinions the instructors are rarely successful." (Emphasis in original). Posner's new accusation that legal writing instructors fail in their goal of teaching students to avoid jargon does not come with an admission of--much less an apology for--the fact that his book made the different and completely false accusation that legal writing instructors affirmatively instruct students to use jargon. Indeed, by saying that only "some" legal instructors even try to teach students to avoid jargon, Posner implies that others don't, thus repeating his false and baseless accusation against a great many legal writing instructors.

6) In my review, I point out that Posner's proposal that law schools should teach civil procedure, evidence, and some other courses as simulation or clinical courses is inconsistent with his complaint that law faculties are too large, because skills-based courses are more labor-intensive, requiring more, not fewer faculty. In his reply, Posner says I am "wrong, because such teaching can be done better by adjuncts—practicing lawyers or judges ([Posner] for example)—who receive slight and often no compensation, than by law professors who have no practical experience."

That might be a good answer, but only if one were to disregard what Posner actually wrote in his book, which is that "clinical" teaching (a term he somewhat inaccurately uses to include teaching simulation courses) should be done by tenured faculty. At page 325 of Divergent Paths, he wrote:  “A further problem is that many, perhaps most, clinical law professors do not receive tenure, are not expected to publish, and do not do much teaching in the conventional sense." If Posner-in-the-book is right that this is a problem, then the solution proposed by Posner-in-the-reply of hiring adjuncts to teach clinical and simulation courses will exacerbate the problem, not solve it.

Maybe Posner has changed his mind since he wrote the book and now opposes tenure for clinical teachers, preferring that adjuncts teach the basic courses as skills courses. That's a proposal worth considering carefully. But Posner gives no indication that he even realizes that what he writes in his reply contradicts what he wrote in the book.

7) Posner thinks my views on legal realism are incoherent because I agree with Professor Brian Leiter's statement that "we are all legal realists now" even as I regard Posner's crusade against the last vestiges of legal formalism as quixotic. There is no incoherence here. My review contends that moderate legal realism has already prevailed. I explain that one can be a legal realist to the degree that one recognizes that formal legal materials often don't decide concrete cases without being an extreme legal realist in the sense that Posner is: believing that formal legal materials almost never decide concrete cases. My review agrees with Leiter's statement about the triumph of moderate legal realism; it argues that Posner's crusade in favor of extreme legal realism will likely fail. These propositions cohere quite well, contrary to Posner’s contention to the contrary.

8) Posner also accuses me of self-contradiction for saying in my review that "Posner does have some good ideas about legal education, but even these seem half-baked." He writes in his reply that this "unintentionally amusing statement" is a "self-contradiction . . . .  Half-baked ideas are not good ideas." Apparently, Posner thinks that the idiom "half-baked idea" means only a "bad idea" but cannot properly be used, as I used it, to mean an idea that is sound in principle but poorly executed in practice.

If Posner is going to make pedantic complaints of this sort, he ought to at least be correct in his pedantry. He is not. If you look up "half-baked" in a dictionary (such as Webster's), you find that the very first listing under the full definition of "half-baked" is "poorly developed or carried out," which is exactly how I used the term.

To be sure, if Posner or someone else had written an objection to my use of "half-baked" in the margin as a comment on a draft of my review that I had circulated for feedback, I would have considered editing it. In fact, because I saw Posner's reply before my review went to press, I had time to consider his criticism as though it were intended as a constructive editorial suggestion rather than simply as a snide remark. I decided to reject the (imputed) suggestion, because I thought that a reader not simply looking for places to score points would know exactly what I meant.

At the risk of further belaboring a very minor point, let me illustrate. Here's the first example that my review gives of Posner having a good idea that is nonetheless half-baked:

[Posner] persuasively argues that a good lawyer should be literate in both the humanities and the sciences. Thus, he proposes that law students who arrive with a humanities background take undergraduate courses in technical subjects, while those who arrive with a technical background be required to take humanities courses in law school. The goal is sensible, but the means are odd. Law schools are already under pressure to add more skills courses, leaving little room to require (admittedly vital) courses outside the law entirely. 

In this example the goal--broadly-educated lawyers--is good, but the means Posner chooses--requiring science and humanities courses in law school--are impractical and thus likely to be ineffective. It's like an apple pie based on an excellent recipe that is taken out of the oven too soon. It's a good apple pie except for the fact that it's only half baked. If Posner wants to insist that the term "half-baked idea" cannot refer to an idea that is good in principle but bad in execution, I'm not inclined to fight him further on the point. But the objection, like too much of the book, is petty.

* * *

Should Posner choose to reply to this blog post, I will let that reply stand without further comment. It's his book that's under review, after all, and so the stakes are higher for him than for me. In any event, I want to make clear that I am not offended by Posner's reply to my review, just as I am confident that he does not take my criticisms personally. As I wrote above and in my review, I continue to regard Posner as a great judge and an important public intellectual. However, Divergent Paths and his reply to my review are not up to the high standard he has set for himself.

Worse, there is something nasty in some of Posner's recent writing that is uncharacteristic of his prior work and his mild manner in person. He is not exactly a bully. To his credit, he punches up at Supreme Court justices and out at prominent academics, not down. Still, Posner sometimes exhibits one of the characteristics of a bully: He can dish it out but he can't take it. As I explain in my review, his book does not merely disagree with positions taken by others; it is filled with mockery. Even in his reply, Posner includes a gratuitous insult of Justice Elena Kagan, questioning the sincerity of her personal affection for Justice Scalia. Yet Posner himself now seems thin-skinned, unable to acknowledge that his latest book might not rank among his best work and thus lashing out (at me and others) in ways that are unbecoming.

Posner wasn't always like this. In 2009, in a terrific essay in The New Republic, Posner both admitted to his prior ignorance of Keynesianism and acknowledged that his own foundational work in law and economics was incomplete. Much of Posner's charm as a judge and a public intellectual has been rooted in his ideological unpredictability--sometimes conservative, sometimes liberal, and always skeptical of pieties. In the past, that skepticism was sometimes expressed bluntly, but lately Posner has come to treat bluntness as an end in itself. It is one thing not to pull punches. It is quite another to throw them wildly, simply for the sake of provocation.

I don't know what to make of Posner's recent change. Perhaps after three and a half decades on the bench he feels more liberated than ever to speak his mind. Or perhaps the coarsening of the culture more generally has rubbed off on Posner. Whatever the cause, for those of us who have so valued Posner's work over the years, it would be a shame if his new excesses were to be seen as diminishing his extraordinary body of work as a scholar, a judge, and a public intellectual.

Bad Economics and Worse Debate Analysis

by Neil H. Buchanan

I wrote my analysis of this week's presidential debate after shutting myself off from the media's reactions to the event, because I wanted to ignore the campaigns' attempts to spin the results and to form my own opinion without being influenced by the commentariat's insta-consensus.

As it happens, my conclusion that Trump lost the debate quite badly ended up being the nearly unanimous assessment.  That is more good than bad, I suppose, because while I do not follow the crowd in these things, I was relieved to see that this was not one of those debates where the media commentary immediately went off the rails.

But I am worried about a sub-consensus that has now emerged in which non-conservative pundits are claiming that Trump was doing quite well in the early part of the debate, which focused on economics and international trade.

That analysis is not merely wrong, but it shows how easy it will be for Trump to snow the pundits in the two remaining debates.  Even worse, a bias against Clinton has again emerged among the fact-checkers and other analysts.  While everyone seems to agree that Clinton crushed Trump on Monday night, there are ominous signs that too many people are preparing to give Trump a free pass on October 9 and 19.

As I noted in my analysis the morning after the debate, I not only did not read or listen to any of the debate-related commentary before writing down my thoughts, but I also did not read the fact-checkers' analyses of the debate.  As I wrote that piece, therefore, I proceeded on the assumption that at least the most obvious lies that had poured out of Trump's mouth would have been picked over by the time I hit the "publish" button.

As a result, I wrote almost nothing about the first third of the debate, which covered economic and trade issues.  Trump was repeating so many of his oft-repeated lies that it seemed safe to assume that his early performance would be dismissed by everyone as yet another dive into his most extreme delusions.

The first several sentences out of Trump's mouth, after all, were simply nonsense.  He began with this: "Our jobs are fleeing the country. They’re going to Mexico. They’re going to many other countries."  Without missing a beat, he then started lying about China: "They’re devaluing their currency, and there’s nobody in our government to fight them. ...  Because they’re using our country as a piggy bank to rebuild China, and many other countries are doing the same thing."

This was all so preposterous that I could not imagine anyone taking it seriously.  And the fact-checkers did a good job in some ways, noting that Trump lied about the size of manufacturing plants in Mexico, that China's currency manipulation had ended long ago, and that Ford had not laid anyone off in the U.S. when it opened a new plant in Mexico.

So far, so good.  Unfortunately, the pundits decided after the fact that Trump was being "aggressive" about economics and trade, and that Clinton's fact-based responses were inadequate.  A New York Times article included this gem: "His aggressiveness may have been offset somewhat by demerits on substance, but ..."  Other than that, Mrs. Lincoln, how was the play?

Even more strangely, the left-of-center Slate site published a column titled: "Trump Destroyed Clinton on the Economy. Here’s What She Should Say Next Time."  And Slate's ongoing "Trump Apocalypse Watch" column included this: "Friends, things were pretty bad last night at about 9:20 p.m.. Hillary Clinton ... started it badly, failing to effectively rebut Trump's well-delivered argument that she's sold out American workers in trade deals."

In one way, I understand what is happening here.  The question in a presidential debate is not only who has a better grasp of facts and logic.  When I wrote in my post-debate analysis, "Whether in a debate hall at Oxford or a shouting match at a local pub, good debaters beat bad debaters," I obviously did not mean that it is impossible for a demagogue to win over a crowd with nonsense.  I only meant that the venue does not matter and that good debaters make better arguments than bad debaters.

And the people at places like Slate could be understood as saying, "We want Clinton to be even better than she was on Monday night, so here are the areas where she needs to tighten up her rhetoric."  But that is a long way from being able to say that Trump "destroyed" her on economics, or even on trade alone.

As Paul Krugman put it: "So don’t score Trump as somehow winning on trade. Yes, he blustered more confidently on that subject than on anything else. But he was talking absolute garbage even there."  Quite so.

What makes this more worrisome is that the fact-checkers decided that Clinton had lied when she explained her decision to oppose the Trans-Pacific Partnership (TPP).  Trump reminded viewers that Clinton had once called the TPP the "gold standard" of trade deals.  Clinton responded that she had done so while the deal was being negotiated, but that when it was completed (after she left the Obama Administration), it did not meet her expectations, so she decided to oppose it.

Now, I can certainly understand why people might suspect that Clinton's story is cover for her decision during the primaries to move toward Bernie Sanders on trade.  I do not see why that is a bad thing, but anyone who wants to say, "That wasn't her real reason for changing her mind," can do so.  They cannot say, as Trump did, that she was changing her view because of what Trump was saying, but it is fair to say that she (like any candidate for office) makes strategic decisions in light of public opinion.

The problem is that the fact-checkers said that Clinton was not even telling the truth, as opposed to putting a positive gloss on a politically motivated policy shift.  (For what it might be worth, I suspect that both things are true.  Clinton wanted to blunt Sanders on trade, but she also saw shortcomings in the final pact.)

The Washington Post's fact-checkers focused on Clinton's statement that she "hoped" TPP would be a good deal and concluded that Clinton "never used the word 'hoped.' Instead, she was more declarative, using the phrase 'gold standard' when she was Secretary of State."  Similarly, the fact-checkers at The New York Times faulted Clinton because she had not made it clear in the past that her support was contingent on the content of the final deal.

What?  Have we now reached the point where Clinton has to begin every sentence with, "Based on what I know now, and assuming that nothing important changes ..."?

A million analogies come to mind, but here is a simple one.  You are watching a house being built.  It looks good as it is going up, and you have seen the blueprints.  Most of the way through the construction, you say that this is a beautiful house.  You look at the house after it is completed, however, and it is not what you thought (or hoped) it would be.  Bad last-minute design decisions have taken what could have been a good thing and ruined it.  You declare that you do not like the house.

Are you lying now because you did not say back then, "Assuming that the house is completed as well as it has been built and designed so far, it will be a great house"?  No one else is held to that standard, but apparently even non-conservatives think Clinton should be.

But what worries me the most about this aspect of the post-debate commentary is that it reminds me so much of the spin after the first 2012 presidential debate.  Many of us remember that debate as the night when President Obama was deemed to have lost the debate because he seemed to exhibit what we would now call "low energy."  Mitt Romney, by contrast, was "commanding" and "impressive."

My analysis of that debate, which I also wrote after sequestering myself from outside commentary, focused on Romney's inability to make an argument or respond to Obama's arguments, and I noted Romney's many obvious lies.

Obama did not win many style points that night, but he won the debate hands down on substance, mostly because he had substance while Romney was allergic to the stuff.  The best that one can say for Romney is that his running mate, now-Speaker of the House Paul Ryan, lied even more egregiously in that year's vice presidential debate.

Even so, the punditocracy decided immediately that Obama had lost the first debate badly.  Democratic partisans were wailing and angry.  As I noted in a follow-up analysis a day later, Jon Stewart captured the essence of the post-debate consensus when he declared Romney a clear victor in the debate, even though (in Stewart's words) "he lied his a** off."

And now we have Donald Trump, who cannot make a coherent argument (in a debate or anywhere else), but who apparently impressed many pundits by delivering his lies and nonsense confidently.  Other than the demerits on substance, we are told, he was onto something.

Again, I know that some of these analyses are designed to ask not whether the candidates' arguments make sense but whether they are "going over well" with undecided voters.  It is possible to undertake such an analysis, however, without declaring that someone won a debate when they were not even debating.  Why not something like this: "Trump's falsehoods on trade and the economy were apparently convincing to some voters who are unaware of the facts"?

If I were advising Clinton, I would certainly be taking these critiques seriously, even though they are utter nonsense.  She needs to be aware that even the people who are rooting for her are willing to call Trump the winner when he lies with bravado and confidence.  Clinton needs to come up with confident responses that are not too wordy.

Even so, we need to be aware that Clinton's consensus win on Monday night has already been spun as a partial loss.  Trump has no economic policy other than vaguely specified -- but very large -- trickle-down tax cuts for the rich.  His ideas on trade are based on pure bluster.  His suggestion that he will bring back the manufacturing economy of the 1950's through 1970's is utterly absurd.

Clinton cannot fact-check everything in real time.  When she tried to do so on Monday, Trump kept saying, "Wrong!" and simply lied about his lies.  He will continue to do that with great confidence.  If the standard for assessing debate performances is, "Who spoke confidently and forcefully, no matter the content?" then Trump will continue to get a free pass.  That cannot be allowed to happen.

Tracking Locational Data Via Cell Phones

by Sherry F. Colb

In my column on Verdict this week, I discuss the Indiana court of appeals case of Zanders v. Indiana, which held that police violate the Fourth Amendment if they obtain locational history data about a cell phone from the cell phone user's provider, absent a warrant.  Though the court tried to reconcile its ruling with existing case law, its strongest argument was that privacy would be severely compromised by a doctrine permitting police to gather locational history data about a person without a warrant.

In this post, I want to emphasize something I mentioned in the column:  if gathering locational history data is not considered a search at all (which it appears not to be, under existing Supreme Court doctrine), then innocent people may be subjected to such gathering for no reason at all or for an affirmatively bad reason.  Police may simply decide that they are curious regarding the whereabouts of particular politically unpopular people or groups and can go to cell phone providers to find out what "dirt" they might be able to dig up about their targets.  Because people keep their cell phones with them at most times, tracking the locational history of a cell phone essentially gives the police a running list of all of the places visited by the individual whose phone records they solicit.  This is an enormously intrusive capability, and those of us concerned about privacy against governmental incursion find the prospect of such surveillance Orwellian and frightening.

At the same time, it is useful to remember something about what it means to say that collecting such data does constitute a search.  It does not mean that police can never do it.

Gathering location history about a suspect who may have committed a serious offense can be an invaluable means of proving that the suspect did in fact (or perhaps did not in fact) commit the crime charged.  If calling the collection of such data a "search" meant that police could never gather the data, then it would be understandable that courts would reject the label and say that cell phone location data may be obtained without implicating the Fourth Amendment.

Fortunately, the Fourth Amendment does not prohibit all searches and seizures.  It prohibits only those that are "unreasonable."  Accordingly, if police have good reason to suspect a person of misconduct that can be further illuminated by a look at his or her locational history, then police may accordingly obtain a warrant to search and have the opportunity they want to look at where the suspect has been over a specified period of time.  In thinking about law enforcements needs, then, and balancing them against the individual's interest in privacy against unwarranted intrusion, it is crucial to keep in mind that police do not need carte blanche in order to do their jobs.  When they seek to invade a person's privacy, however, they do generally need probable cause and (often) a warrant as well.  That is all that the case of Zanders and the argument that locational data gathering is indeed a "search" aim to accomplish.

Trump Loses Badly to Clinton and Is Trounced by Reality

by Neil H. Buchanan

Donald Trump's loss in the first presidential debate on Monday night was predictable.  Jane Goodall, the expert on primate behavior, said earlier this year that Trump's behavior during the Republican primary debates reminded her "of male chimpanzees and their dominance rituals."  Unable to change his innate patterns as he faced off against Hillary Clinton, Trump looked increasingly ridiculous as the night wore on.

Before getting started, I should mention that I have not discussed the debate with anyone.  Further, I have refrained from watching commentators or campaign surrogates on TV, and I have not read any reactions or fact-checking articles regarding the debate.  For all intents and purposes, I have sequestered myself in order to take some time to analyze the debate before writing down these reactions.

I take this approach because I have always found it infuriating how quickly groupthink takes over in presidential debate commentary.  The usual suspects start talking to each other, and within minutes everyone is agreeing that Barack Obama seemed to be in a bad mood (2012's first debate), or Al Gore sighed too much (2000's first debate), and so on.  If I am going to offer my thoughts on the debate, they ought to be my thoughts, not an attempt to react to other people's thoughts.

Now, back to the debate.  Because I have some background in American parliamentary debate competitions, as both a debater and a coach, I am framing my reactions here around the debating aspects of last night's event.  In doing so, however, I will also discuss some of the policy substance and matters of style, as well as some big takeaways from the event.

Again, Clinton won the debate easily.  Trump's only real hope going into the night was to manage expectations, trying to convince everyone that his opponent was so obviously a better debater that he should be given points simply for showing up.

That might work with some commentators, but I am not interested in the expectations game.  I care -- and I think everyone should care -- who was the better debater last night, not who performed reasonably well in light of some people's expectations.  On both substance and style, it was not a close call.

There is, of course, a good argument that these are not really debates at all, but that is beside the point.  In any format, it is possible to judge a person on the basis of his or her ability to make arguments (backed up by logic and evidence), to attack other people's arguments, and to respond to attacks.  Whether in a debate hall at Oxford or a shouting match at a local pub, good debaters beat bad debaters.

Trump has never shown any ability to argue.  His entire campaign has been a long series of assertions, usually without even the pretense of building a logical argument.  "I'll build a beautiful wall, and Mexico will pay for it."  "Trust me, the jobs will come back."  Worse, on many issues, Trump frequently changes what he says without explanation or shame.

In a debate, it is essential to construct arguments and respond effectively to one's opponent.  Last night, Trump's most frequent method of replying to Clinton's arguments was to interrupt and say, "Wrooonnnggg!"  It brought to mind an old Monty Python sketch, in which two people simply yell, "Yes, it is," "No, it isn't," rather than actually arguing with each other.  Unfortunately for Trump, Hillary Clinton was not sinking to his level.

Of course, it was not a perfect night for Clinton.  Trump made a large number of claims during the debate, and Clinton did not have time to respond to all of them.  She thus missed a few opportunities that Trump laid out for her.

For example, at one point Trump said that he would adopt the stop-and-frisk policy to reduce crime.  The closest he came to an argument was to say that New York City had adopted stop-and-frisk under the Giuliani administration and that crime had then gone down, while the current mayor of New York (Bill de Blasio, whom Trump refused to name) dropped stop-and-frisk.

Clinton had several effective responses to this claim, noting in particular that stop-and-frisk resulted in young African-American and Latino men being targeted for harassment, which dovetailed nicely with her previous argument about the importance of building trust between communities and the police.  (This is another sign of a strong debater, using one argument to buttress another.)

Clinton also noted that crime in New York City had continued to fall even after the end of stop-and-frisk.  What she did not have a chance to say is that crime in other cities had fallen during the Giuliani and Bloomberg years, including cities that did not use stop-and-frisk, many of which had seen greater declines in crime rates than New York enjoyed.

If that was a missed opportunity, however, Clinton could afford it.  Trump was making matters worse for himself by claiming that stop-and-frisk had not been found unconstitutional.  His argument?  The judge who said it was unconstitutional was biased (thus unfortunately reminding viewers of his racist attacks on the judge in the Trump University fraud case), and the ruling would have been reversed on appeal.  In short: It wasn't ruled unconstitutional, because the judge who ruled it unconstitutional was wrong, and another court would have gotten it right.

On the campaign trail, Trump can get away with nonsensical sequences like that.  On a debate stage, he had to stand there and scowl while deciding when to interrupt Clinton next.  And the more he tried to deny reality, the more he flailed.

Along those lines, the two strangest strategic decisions Trump made were to try to rewrite history regarding his views on the Iraq War and his embrace of "birtherism."  In both cases, he had to know that the topics would come up and that his alternative realities had been completely debunked for weeks or months.

On his support for the Iraq War, Trump claimed not to remember exactly what he had said to Howard Stern in what is now a widely discussed interview in 2002.  Trump's new version of the story is that he had not thought about the subject much back then and thus should apparently not be held responsible for saying what he said.  (Another weird Trump move was to repeatedly ask why no one would interview Trump's cheerleader Sean Hannity, who will apparently swear that Trump opposed the war.  No, really.)

Similarly, when the moderator asked why Trump had continued with the birther nonsense during the five years after Trump claims to have "ended" the controversy, Trump brushed it off by saying that no one was really talking much about birtherism for the last five years.  He then tried to repeat a completely debunked lie about Clinton's supposed connection to birtherism.

But of course, Trump himself had been talking frequently about President Obama's birth certificate during that time, which is what the moderator wanted Trump to explain.  Saying that other people were not all that interested was non-responsive.  It made Clinton's response about the inherent racism of the birther claim all the more effective.

What is especially odd about these counterfactual assertions is that they could not have been off the cuff.  Trump had to have planned with his advisors to make these moves, because the two topics were sure to come up in the debate.  But instead of having answers that could somehow square his lies with reality, he simply waved his hands and tried to change the subject on two key issues.

Another example of pure debating prowess on Clinton's part (and whatever the opposite of prowess is on Trump's part) came when the moderator asked Trump about his recent claim that Hillary Clinton does not "look" presidential.

Earlier in the debate, Trump had made an inexplicably snarky remark about Clinton's having taken time off from campaigning, and Clinton had generously not interpreted that statement as a slam on her for having had pneumonia.  Given a second opportunity, Trump decided to make matters worse.

Trump said that that Clinton lacked the stamina to be president.  Clinton, in what was probably her best moment of the night -- in terms of substance, style, and looking appealing to undecided voters -- responded by saying that she has shown stamina as Secretary of State (traveling constantly on behalf of the United States), and she invoked the absurd 11-hour House Benghazi hearing as evidence of her fortitude.

In other words, Clinton responded to a baseless schoolyard taunt by saying, "You don't think I'm tough?  You don't know what tough is."  This was not only effective and directly responsive to Trump's assertion, but it showed that Clinton was not over-scripted or lapsing into wonkishness.  She was in the moment, taking down her opponent effortlessly and effectively.

Importantly, however, Clinton also managed to return to the moderator's question, which was about Trump's comment that Clinton did not "look" like a president.  Clinton noted that Trump had changed the subject by moving from looks to stamina, and although she had just won the stamina argument, she was not going to let him off the hook on looks.  She used that as an opportunity to remind voters that Trump disparages women regularly.

There were many puzzling moments in the debate, but perhaps the strangest of all was Trump's claim that everyone agrees that Rosie O'Donnell deserved the nasty things he had said about her.  At least, I think he was saying that.  It all became rather difficult to follow.

Indeed, as the debate wore on, it became more and more difficult to understand what Trump was trying to say.  It appeared that Trump was losing his struggle against his inner demons, because he began to make assertions that were simply at odds with reality, while claiming that the mainstream press had distorted reality.

More interestingly, Trump ultimately retreated into his patented aggrieved default mode, claiming that the Clinton campaign was being ever so nasty by running negative advertisements against him.  (He assured us that the ads were quite nasty and that most of them were false.)  He tried to say that he had considered being nasty to Clinton, but he was too magnanimous to go negative.  Maybe a few people even believed him.

By the end of the debate, Trump was becoming nearly incoherent.  His final comment found him simply repeating again and again that he would "make America great again," before finally saying meekly that he would respect the outcome of the election.  (This is not to say that he will stick to that promise, but he did say it.)

In my next column, I will turn to discussing the substance of the discussion of economic issues in the debate.  On those issues, too, Trump was in a losing battle against reality, but his errors there were less Trumpian than simple repetitions of Republican talking points.

Most of last night's debate, however, saw Trump being very much the person that we have seen in the campaign.  He was consistently rude and condescending, self-confident about matters of which he knows nothing, and incapable of stringing together logical thoughts and arguments.

I will now go off to read what the punditocracy has decided happened last night.  What actually happened on stage, in any case, was a trouncing.  Clinton was not perfect, but she was extremely good.  Trump was a version of his own worst self, which is bad in general but simply terrible on a debate stage.

A Former Debater Previews Tonight's Presidential "Debate" (and Proposes a Drinking Game)

by Michael Dorf

Tonight is the much-anticipated first of three presidential (and one vice-presidential) "debates" between the Republican and Democratic candidates. I have put the word in quotation marks to reflect the fact that, as Jill Lepore explains in an excellent recent article in The New Yorker, the presidential debates are more like simultaneous press conferences than conventional debates. Having said that, I hasten to add that while I do not think the format for tonight's event is ideal, I also don't think that a conventional debate is ideal either.

Lepore quotes various people who distinguish between presidential debates and Oxford-style debates. In the latter, one side takes the affirmative and the other side takes the negative of some proposition. In principle, this approach could be adapted to presidential debates. For example, we could have a debate on the proposition "the next president needs to build on the accomplishments of the Obama administration," with Clinton taking the affirmative and Trump taking the negative. Or, we could have a debate on the proposition "America's allies are not pulling their weight," with Trump taking the affirmative and Clinton the negative. Or "law-abiding undocumented immigrants should be given a path to citizenship," with Clinton affirmative and Trump negative. Or "the Affordable Care Act should be repealed and replaced," with Trump affirmative and Clinton negative. But the problem is that there are really too many topics to cover, so that each debate would have to be structured around one extremely vague or a few quite vague topics. The result would end up being something like the subject areas that moderator Lester Holt will ask the candidates about tonight: (1) America's Direction; (2) Achieving Prosperity; and (3) Securing America.

There are two further difficulties with modeling a presidential debate on a conventional Oxford-style debate. The election is not merely a contest of ideas. Indeed, from Trump's perspective, it is not a contest of ideas at all, as his appeal is rooted in the notion that the problems we face are best addressed by simply giving him power unrestrained by "political correctness" (or, as some of us still quaintly call it, the Constitution). But even were the GOP nominee more conventional, voters wouldn't simply want to know what each candidates' taxing, spending, regulatory, and defense priorities are. Nor could the candidates have a serious discussion of which priorities are, all things considered, better, even if they both wanted to. These debates are also a kind of job interview--a test of each candidate's knowledge and demeanor under pressure.

The second difficulty with Oxford-style debates is, in my view, actually a problem whenever such debates are used to address public policy issues for a broad audience, rather than merely undertaken as a competitive sport. Consider the high-quality Oxford-style debates produced by Intelligence Squared. Pairs of experts debate one another on important issues in a lively back-and-forth. However, under the misguided impression that the point of the exercise is to determine which team debated better, the scoring is peculiar. The audience is polled before and after the debate about their position on the debate question. The winner is not the side with more supporters after the debate but the side with more supporters after than before. Thus, to give a hypothetical example, suppose the proposition were: "There should be a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Suppose further that before the debate 99% of the audience disagreed with the proposition and 1% agreed. Then, let's imagine that after the debate, only 98% of the audience disagreed. The affirmative side would be declared the winner because the audience had shifted in its direction. That makes no sense at all if we are trying to figure out what sensible policy should be. Except in debate as sport, the point of debate should be to consider which of competing views is sounder, not to determine which debaters are more skilled.

I say this even though I was a reasonably successful college debater in Oxford-style debate. Thirty years ago, my debate partner  and I won the American Parliamentary Debate Association's national championship. Three years earlier, my now co-blogger, sometime co-author, and good friend Neil Buchanan won the same championship. (A list of annual champions can be found on the APDA website. Notably absent from the list is the most notorious APDA debater, Ted Cruz, who won a great many awards as a debater, but not the national championship.) Admittedly, these are less impressive accomplishments than one might think. College debate in the U.S. is fractured among various formats. Parliamentary debate was and remains popular mostly at Ivy League and other elite, mostly northeastern colleges (as you can tell from the list of APDA champions and venues), while other styles of debate tend to dominate elsewhere. Accordingly, Neil and I were "national champions" somewhat in the way that winners of the formerly Trump-branded Miss Universe pageant are the "most beautiful and talented" (female) beings in the universe. It's certainly not nothing, but it's not exactly what it sounds like.

But I digress. Turning back to tonight's debate, I want to issue a warning and then offer some advice to each candidate.

First, the warning. Inevitably and immediately, pundits, focus groups, and pollsters will try to determine "who won" the debate. As noted above, this is the wrong question when trying to ascertain the result of a public policy debate. It's also the wrong question when posed about the candidates.

Suppose that an undecided somewhat libertarian voter begins watching the debate thinking "I'm not ready to vote for Clinton because I think that like most Democrats, she favors too great a role for regulation, but I'm afraid of Trump because I think he's too much like Hitler." Now suppose that after the debate that same voter thinks "I still think Clinton favors too much regulation, but I now think that Trump is more like Mussolini than like Hitler." Under the Intelligence Squared approach of asking who moved you more, this voter would have to conclude that Trump won the debate. But that's nuts. If my somewhat libertarian voter is justly horrified by electing Mussolini president, he should vote for Clinton over Trump, even though Trump isn't quite as bad as he feared before the debate. As with public policy debates generally, the question voters should ask--and that therefore responsible, which is to say mostly nonexistent, pundits should ask--is not "which way were people moved by this debate?" but "who made the better case to be president?".

Note that what I've just said differs a bit from the usual complaint about expectations. That's an additional problem. Because Trump has so accustomed us to his lies and insults, there is a risk that he will be graded on a curve. "Look at that," one imagines a tv talking head saying. "Trump smiled when he shook Clinton's hand."

But even apart from the tendency of the media to report on how a candidate did relative to expectations rather than in some objective sense, there is a tendency for reporting on debates to go meta almost right away. Instead of dwelling on what Trump said he would actually do about undocumented immigrants already in the country and how that does or does not square with what he previously said, the punditocracy can be expected to pivot immediately to how his debate performance will play with the voters. Likewise for Clinton, even if there is nothing in her performance that calls into question her honesty and trustworthiness, expect the talking heads to go meta about whether what she said will suffice to lay to rest the (mostly groundless) doubts that the public have about her honesty and trustworthiness.

Now some advice to each candidate.

For Clinton: You have multiple goals for this debate. These include:
1) Demonstrate your preparedness for the job through your mastery of policy;
2) Undercut the media narrative and much-too-widely-held belief that you are dishonest and untrustworthy;
3) Connect with voters on a personal level by showing that you understand and care about their problems;
4) Prosecute the case against Trump based on his many years as a con man and the despicable (probably best to use a different word!) nature of his campaign;
and
5) Respond to the various dishonest and idiotic things Trump says during the debate.

No single answer to any question can do all of those things. Further, as a general matter, time spent attacking Trump is time not spent painting your own image and vice-versa. If it were my call, I'd strongly prioritize the affirmative goals of 1 through 3 because there are already lots of voters uneasy with Trump who are looking for a reason to vote for you rather than sitting out or casting a protest vote for Johnson or Stein. That's not to say you must completely ignore goals 4 and 5. It is instead to say that you should aim at those only insofar as it doesn't take much time away from your affirmative case. E.g., in the course of explaining all of the good work that the Clinton Foundation has done, you can contrast that with how the Trump Foundation spent $20,000 of money intended for charity to purchase a portrait of Trump. Or, in the course of delving deep into your experience combating al Qaeda and other jihadists, note that Trump's all-purpose claim that he wants to be "unpredictable" is obviously just a cover for the fact that he is a policy ignoramus. There are limited contexts in which game theory favors tactical unpredictability, but Trump invokes the supposed magic of unpredictability whenever he gets a question he can't answer.

For Trump: If I'm thinking only about the good of the country and the world, my main advice would be that you should crawl back under the jewel-encrusted rock from which you emerged last year, and thus save us from the catastrophe that we would risk should you manage to win the election. However, secure in the knowledge that neither you nor the people who try to package you to voters will actually read what I say here, I will pretend that I am being tortured in order to give you advice about how to do well in the debate. It's not so unrealistic, given the prominent role that torture and other war crimes (like plunder) would play in your foreign policy. Okay here goes:

Conventional wisdom says that you have an easier job in this debate because expectations are so low. That conventional wisdom is wrong. Expectations were even lower for Sarah Palin in the 2008 vice-presidential debate, which meant that the pundits immediately declared that she had done very well. But the story changed the next day when people who were not grading on a curve weighed in. They saw Palin and they judged her unprepared to be Commander in Chief in the event that tragedy should befall a President McCain. Running at the top of the ticket, you have a higher bar to clear.

As you are now in your eighth decade of existence on this planet, with only a few hours until the debate, it's undoubtedly too late to advise you to read up on current events, history, science, economics, and all of the other stuff that the leader of a great country ought to know about. Thus, actually talking knowledgeably is out of the question for you. Instead, I imagine that you will try to stall with superlative word salad ("terrific", "huge", "the best") as much as possible. In addition, your handlers have probably given you some lines to memorize. You now face a dilemma. Even if you can remember your prepackaged lines, you will be sorely tempted to ad lib because of that "very good brain" of yours. You should resist the temptation. Your goal for this debate is to be boring. Stick to word salad and the memorized lines, even at the risk of looking like a robotic Marco Rubio unmasked by Chris Christie. People who plan to vote for you because they find your unique brand of narcissism, faux-populism, and racism appealing won't fault you for being boring for one night, but the swing voters who are trying to figure out whether you are too much of a buffoon and a racist to be trusted with the nuclear codes will prefer boring to Trumptastic.

To the candidates: You're welcome.

To everyone else: Bonus points for the reader who comes up with the best drinking game to play while watching the debate. I'll get us started with a default drinking game. Here are the rules:

Drink each time . . .

Trump says "crooked", "we don't win anymore", "make America great again", or "people tell me."

Clinton says "steady", "experience", "children," or "Obama."

Bottoms up!

Economic Policy and the Presidential Campaign

by Neil H. Buchanan

Like Professors Colb and Dorf, I write a biweekly column for Justia's Verdict legal commentary website.  Our standard practice is to write an associated Dorf on Law post the same day that a Verdict column is published, usually to dig more deeply into an issue raised in the new column or to pursue a logical next step in the analysis.

This week was different for me.  I wrote two Verdict columns in which I discussed different aspects of economic policy, whereas my one Dorf on Law post was on a different topic entirely ("Trump is Weakness in an Uncertain World").

For those Dorf on Law readers who might be interested, my Verdict columns from this week are:

Trump’s Economic Policy Announcements Keep Changing, But They Never Get Better

and

Good Economic News Is Good for Clinton and Bad for Trump.

Enjoy!

How the US Looks From Afar These Days

By William Hausdorff

What image does the US have abroad these crazy days? And do we care? In national elections, people are naturally inwardly focused on what the election may mean for them, their families, and their communities. But as viewed from abroad, the national narcissism appears especially intense this year.

American politicians of both parties used to care more about that image, or at least said they did. A major component of the Cold War policies pursued by all American governments was the need to “look strong” and “fulfill our commitments to friends and allies.” Many commentators have noted that although President Lyndon Johnson recognized early on that the Vietnam War was unwinnable, he felt so trapped by the need to project a certain image of the US that he ended up escalating the War with the known disastrous consequences.

Richard Nixon’s similar preoccupation with “peace with honor” served as a pretext to continue to prosecute the War for another four years, notwithstanding his “secret plan” to end it. One can argue that this preoccupation was either totally cynical or delusional, as few people outside the US genuinely considered that continuing the War--and in fact, expanding it into Cambodia--burnished America’s image. But then again, despite the fact that 22,000 of the total 58,000 US deaths, and hundreds of thousands of additional Vietnamese, Cambodian, and Laotian deaths occurred during Nixon’s first term, the Norwegian Nobel Committee saw fit to award the 1973 Peace Prize to Henry Kissinger, the strategic mastermind of Nixon’s policy as his National Security Advisor. It’s sometimes forgotten that Le Duc Tho, his co-awardee and Vietnamese counterpart, refused the prize, noting that peace hadn’t really been established in Vietnam.

All cynicism aside, at least there was a recognition by US government officials that the image of the US abroad mattered. In the past few years, however, it seems the Republican Party has lost interest in how the rest of the world views the US.

In fairness, Trump and the Republicans do like to claim that the “US looks weak” in their attacks on Obama. But in contrast to previous administrations’ preoccupation with honoring American commitments, this crowd flouts its willingness to walk away from painstakingly negotiated international agreements, such as on Climate Change and Iran, not to mention NATO. No political party concerned with the international perception of the US would have invited a foreign head-of-state (Israel’s Benjamin Netanyahu) to address a joint session of the US Congress for the explicit purpose of flatly criticizing the US president. No presidential candidate concerned about the US image would go on Russian state-owned TV to criticize the US president.

No one can seriously argue that these behaviors enhance America’s standing. Given the likelihood that erratic leaders in countries like the Philippines or nuclear-armed North Korea will continue to hurl personal insults at US leaders, it is hardly reassuring that the thinnest skinned US Presidential candidate ever, with a fondness for violent rhetoric, has vowed he wouldn’t “let” Iranian or Chinese officials insult us or our sailors.

Based on personal conversations and my reading of local newspapers, Europeans are watching the US election campaign with bewilderment, fear, and horrified fascination this year. While many are not surprised to see another dogmatic, gleefully ignorant Presidential candidate, they did not expect the US to produce someone so openly nasty and outrageous, and who seems to cozy up to Putin, especially when Europe itself has longstanding issues with their big neighbor. And I think they are sad to see the US with Trump echoing some of the more poisonous political characters in their own societies, with the additional concern that in the US “it matters more.”

Naturally Americans overseas are now asked, “How could the US, of all countries, vote for Trump?” There is a certain déjà vu from the period immediately following the US invasion of Iraq. At that time, one quickly learned to brace oneself before answering the question, “So what country are you from?” as the response would often lead to sour looks if not the prosecutorial questioning of “How could the US possibly re-elect Bush?”

My initial responses at the time were that almost half of America did NOT vote for Bush, and highlighted how huge and divided the country actually was: The US is more like a continent rather than a single European country, and naturally quite diverse—like Europe is. There are huge regional differences in voting patterns: the East and West Coasts and the Great Lakes states vote very differently in Presidential Elections than most of the South, mid-West and West, blue and red states etc. Not to mention the existence of the electoral college.

This may seem common knowledge, and even a point of pride for some of us, but many educated Europeans seem unaware of these geographical subtleties. I even heard from a couple of Belgian colleagues that they considered the US to be culturally less heterogeneous than Belgium (11 million people), which after all has 3 official languages (French, the Flemish variant of Dutch, and German)! And indeed, why should foreigners be aware of US regional political differences? The attentive US reader may have learned recently about geographically where in the UK support for Brexit came from, but can any of us gringos discuss the regional differences in Italian voting patterns for Silvio Berlusconi? Or Jean-Marie Le Pen in France? Where exactly in Germany is Angela’s Merkel’s strongest support?

I was eventually able to avoid all this Americasplaining when I stumbled on a more concise response to the original question as to where I was from: “New York.” This would invariably prompt big smiles of, “Oh I love New York City!” followed by accounts of their personal experience or desires to visit there.

As a side note, this New York affinity was paradoxically strengthened I think by the 9/11 attacks. I watched the attacks on the Twin Towers and Washington live from my office in western New York. But what was 9 a.m. East Coast time was only mid-afternoon in Europe, and mid-evening in much of Asia—and so I’ve learned that millions of people around the world also watched the horrors unfold in real time. This shared viewing experience engendered a strong sense of shared trauma, not only from the many with relatives living in New York or who had visited there, but because New York is by far the most iconic American city for foreigners.

But of course it’s not just New York. Many many people outside the US feel very connected to this country, even if the feelings are often ambivalent. There are the well-known familial bonds—everybody seems to have a brother or cousin, not just in New York or Los Angeles or Chicago, but in Boise, or Chapel Hill, or Tulsa. There are the obvious political and economic linkages. On numerous occasions, European colleagues and friends have announced with only half serious laughs that they also should be able to vote in US elections as US policies directly affect them even more than those of their own leaders.

There is of course the cultural connection, given the popularity of American movies and TV shows around the globe. As one trivial example, I remember being on the immigration line at Heathrow Airport on my first trip as a college student to Europe, and being told by a Libyan my age that he loved Leave it to Beaver, which apparently aired on Libyan TV under the Kadhafi regime in the late 1970s.

With Trump, while the geographic voting patterns remain, I have felt compelled to try to offer a more fundamental answer. Among U.S. Trump supporters, there is unquestionably a non-trivial percentage of “deplorables” who embrace his racism, his macho swaggering and denigration of women, as well as his advocacy of violence. However, my impression is that most others see their vote for him essentially as a collective and symbolic “fuck you” to the establishment and to the “rigged system.” Turbo-charged by an almost mythical level of loathing for Hillary Clinton.

And while this latter group of supporters doesn’t necessarily share Trump’s other values, they either don’t stop to think how those might get translated into mean-spirited policies in a Trump administration, or else they presume that his worst impulses will be restrained by “the system” and his advisors. Unfortunately, restraint hasn’t worked so far—the litany of outrageous behaviors, non-stop lies and bizarre conspiracy theories continues, unabated. And yet he remains supported by almost all of the Republican leadership. So why would he behave differently once he gains real power as President?

The current presidential campaign is clearly damaging the perception of the US overseas. Is this irreparable? While the Vietnam War cast a negative pall over the US image abroad that was still obvious 10 years after the war ended, even in those days I sometimes encountered a different view. Back in the early 1980s I was travelling as a young graduate student with two friends in Crete. At the end of a hot, dusty August day of sightseeing, we collapsed onto park benches in a large town square in Heraklion to gather our wits for the dinner search. A man in his late 60s came over to us, and mutely offered a cigarette. After we politely declined, he asked, “American?” I nodded, wincing slightly, as I assumed that once again our sneakers had betrayed our nationality. (Update: Given the newfound European popularity of Converse, this is no longer a telltale sign.)

As this occurred when Ronald Reagan wasn’t a popular figure in Western Europe and certainly not in Greece, I wondered what was coming next. “USA. Very, very good!” he said with a smile as he pulled back the sleeve of his sweatshirt to show a blurry number tattooed on his arm. I later learned that the Nazi retributions against the fierce Cretan resistance had been particularly brutal.

Lest this sound like a nostalgia trip from a bygone era, a similar event occurred only a decade ago--just a few years after the Iraq invasion. Then my family and I spent a few days in Corsica, and were chatting in rudimentary French with the 70s-ish owner of a busy seafood restaurant. When she discovered we were American, she broke into a big smile, and recounted memories as a young girl of the Allied liberation of the island from the Italians in the early 1940s. Even though I don’t think US G.I.’s were directly involved in its liberation, the US role in WWII still casts a warm if fading glow.

In general, however, it took the election (and re-election) of Barack Obama to remove the taint of the Iraq invasion and the Bush years.

It would be nice not to see America’s image trashed yet again. So I’ve been trying to imagine what, at this point, Trump would have to say or do to lose a significant proportion of his support. I’m not coming up with a lot. Back in January, he himself declared, perhaps quite accurately, "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters.

This is strikingly reminiscent of the colorful boast by former Governor of Louisiana Edwin Edwards in 1983 that, “The only way I can lose this election is if I’m caught in bed with either a dead girl or a live boy.” While Edwards did win that election, he eventually went to prison on racketeering charges.  So maybe there is hope.

[Editor's Note: William Hausdorff received his PhD in Biology from the Johns Hopkins University/National Institutes of Health and conducted post-doctoral research in biochemistry at Duke University.  For the past 25 years he has worked and published widely in the field of international public health, initially with the US Centers for Disease Control/US Agency for International Development in Washington DC and Cairo, Egypt, and more recently within the vaccine development divisions of two pharmaceutical companies.  At present he is a freelance consultant based in Brussels, Belgium. He has closely followed presidential politics since the days of McGovern/Nixon. His special interest is in the intersection of science and society, dating from his undergraduate thesis on the health effects of Agent Orange. His prior posts on Dorf on Law appear here, here, and here.]
 

Questions for Judge Katzmann

by Michael Dorf

Yesterday, a panel of the U.S. Court of Appeals for the Second Circuit--Chief Judge Katzmann, Judge Hall, and Judge Wesley--heard oral arguments here at Cornell Law School rather than in their usual courthouse at Foley Square in lower Manhattan. Continuing the festivities, today I will moderate a discussion with Judge Katzmann. I plan to ask some questions and then some follow-ups depending on what Judge Katzmann says, before opening the discussion up to the audience.

Of course there are standard questions one asks of a judge in this sort of setting, but I'm going to try to focus on questions that arise out of Judge Katzmann's 2014 book Judging Statutes. The book is more or less a defense of purposivism in statutory interpretation--and especially the use of legislative history as a means of construing vague or ambiguous legislative language. Conversely, the book critiques textualism. Judge Katzmann's excellent and highly readable book illustrates his own views with in-depth studies based on three cases his court decided and that were subsequently reviewed by the Supreme Court.

Here is a preview of three of the lines of inquiry I hope to pursue in our conversation later today. I'll pose them here as though I'm speaking directly to Judge Katzmann.

(1) In making the case for the relevance of legislative history, you argue that Congress itself and the administrative agencies consider legislative history essential to how they create, understand, and administer statutes. But does it follow that courts should resort to the same material? Let me suggest that you need some further argument for that proposition.

Here’s a suggestive metaphor for what I regard as the gap in the argument. Editors of textbooks often also write Teacher’s Manuals, which are available to instructors but not students. The teachers use the manuals to get a deeper understanding of the material and to make lesson plans, but the students don’t have access to them. Might legislative history work similarly? Or consider the owner’s manual of a car. There are a great many documents that are relevant to the production and servicing of a car, but the owner—if she is not an amateur mechanic—only looks at the owner’s manual. I’m not suggesting that either of these examples is anything like a perfect analogy. I’m simply giving them to make the point that it is sometimes sensible for one audience to have reference to a narrower range of documents than another audience. Why do you think that judges should have reference to all of the technical production documents for a statute rather than just the owner's manual?

(2)  In your book, you distinguish between purposivism and textualism, expressing a preference for purposivism. When I teach my students about different approaches to statutory construction, I usually include a third approach: Intentionalism. The chief difference between intentionalism and purposivism is that the former asks what the legislature actually intended, whereas the latter asks what purpose or purposes can reasonably be attributed to a statute and then how best to carry them out. A purposivist might, but also might not, be amenable to consulting legislative history. Do you disagree with this schema? If not, do you consider yourself an intentionalist or a purposivist? Why?

(3) You note in your book that some textualists ground their approach in public choice theory, which you criticize on the ground that it inaccurately disregards the sometimes-public-regarding reasons Congress has for enacting laws. For what it's worth, I agree with your critique of public choice.

You also note, however, that there are other arguments for textualism that do not rely on public choice theory. One leading such argument--originally proposed by Prof. John Manning and later adopted by other textualists--treats textualism as a non-delegation doctrine. When courts treat committee reports, floor statements, and other sorts of legislative history as highly probative of the meaning of statutes, textualists argue, they effectively delegate to congressional staff or to particular members of Congress the task of legislating. But cases like Bowsher v. Synar and Metrop Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise forbid such delegations. Article I, Section 7 says that Congress, not a servant or subset of Congress, has the power to legislate.

You say that the non-delegation argument for textualism is mistaken. You write:

The contention that the use of legislative history violates the constitutional proscription against self-delegation . . . is premised on a mistaken view of the legislative process. Legislative history accompanying proposed legislation precedes legislative enactment. When Congress passes a law, it can be said to incorporate the materials that it, or at least the law's principal sponsors (and others who worked to secure enactment), deem useful in interpreting the law. After all, Article I of the Constitution gives each chamber the authority to set its own procedures for the introduction, consideration, and approval of bills. And each chamber has established its own rules and practices governing lawmaking--some favoring certain proceedings over others--establishing [what Professor Brudney calls] "a resultant hierarchy of internal communications." Those rules and procedures give particular legislators, such as committee chairs, floor managers, and party leaders, substantial control over the process by which legislation is enacted. Communications from such members as to the meaning of proposed statutes can provide reliable signals to the whole chamber.

It seems to me that there are potentially three distinct arguments in that passage. One is simply about timing. It says that because the legislative history process takes place before enactment of the law, giving it effect as law is not delegation. If meant to stand alone, the timing point strikes me as not very forceful. Suppose that a law contained the following clause: "In ascertaining the meaning of Section 2j of this Act, the views expressed by the junior Senator from Vermont prior to the law's enactment shall be deemed authoritative." Or worse: "In ascertaining the meaning of Section 2j of this Act, the views expressed by the Duke of Wales prior to the law's enactment shall be deemed authoritative." If there is no evidence that Congress was actually aware of what the junior Senator from Vermont (or the Duke of Wales) said, then we cannot treat Congress as incorporating by reference his expressed views. Rather, this looks like delegation either to a subset of Congress or wholly outside Congress, plain and simple. The timing doesn't appear to matter.

Accordingly, I take you to be saying that the timing interacts with the actual legislative process. That brings me to the second argument: The idea is that the whole of Congress is keenly aware of what the committees and sponsors say and intend, and so when a statute uses unclear language, we can safely assume that such language incorporates by reference the statements found in the legislative history. This argument strikes me as persuasive if the factual assumptions underlying it are correct, but I think they're pretty plainly false. As you note in the book, most members of Congress are not aware of much of the language in most statutes they enact, much less of the glosses given to it by the committee process.

That brings me to the third argument in the passage quoted above: Congress has the power, in virtue of Article I, Sec. 5 ("Each House may determine the Rules of its Proceedings"), to delegate actual lawmaking power to its committees, so long as it follows up by enacting legislation. For this argument to work, one must either think that cases like Bowsher and Metrop. Washington are wrongly decided or think that the absence of a formal delegation to committees makes a big difference.

I hasten to add that I don't think that reliance on legislative history to fill statutory gaps violates the non-delegation doctrine for two reasons. First, the non-delegation doctrine is quite toothless. The authority granted by looking to legislative history is much more minor than in cases like Bowsher and Metrop. Washington (which, technically, are not non-delegation cases so much as Art I, Section 7 formalism cases). Second, as you write elsewhere in the book, looking to legislative history where the statutory meaning is otherwise unclear constrains courts. It would be better if Congress could be clearer (it can't always be), but as between judges making stuff up and pretending to find their preferences in the text versus looking to what will probably be a pretty good indication of legislative intent, the latter makes more sense.

* * *

I'm looking forward to a terrific session.

Wedge Issues in the Courts

by Michael Dorf

In my new Verdict column, I consider the various ways in which the future path of SCOTUS jurisprudence does not depend on the outcome of the 2016 presidential and Senate elections. For what I imagine are a majority of DoL readers and, indeed, for myself, the column is intended partly as a form of therapy. There are many potentially terrible consequences of a Trump presidency, should it come to pass, but, my column suggests, a terrible Supreme Court is not really one of them. Trump would almost certainly nominate a conservative to fill the current vacancy and additional conservatives to fill future vacancies. That, in turn, could lead to a conservative Supreme Court for a generation. And that, in my view, would be quite bad on a range of issues I care about, including abortion, affirmative action, campaign finance regulation, federal regulatory power, gun control, and more. But so far as the Supreme Court is concerned, Trump poses no greater threat than would a generic Republican president. So yes, a Trump victory would be (for liberals like me) terrible for the Supreme Court but not in a distinctly Trumpian way.

The Verdict column offers three reasons for some measure of equanimity if not quite optimism about the Supreme Court. First, the Court does not play a significant role in some of the most fundamental questions our polity addresses, including whether to go to war, tax rates, interest rates, treaty negotiation and ratification, and much more.

Second, in many areas the Court proceeds from consensus. This includes free speech, which, in the event of a Trump presidency, could be important. It is possible to imagine the Roberts Court standing up to a censorial Trump administration in some contexts.

Third, new issues could arise without a clear ideological valence or with one that cuts across existing divisions. In the column I discuss surveillance, robots, and animal rights as possibilities.

Having said all of that, I also want to acknowledge that there could be new issues that reinforce existing ideological patterns. For a recent example, consider the ideological division on the Court in NFIB v. Sebelius, the challenge to the so-called individual mandate of the Affordable Care Act. The Court split 5-4 on the permissibility of the mandate under the Commerce Clause (against) and 5-4 on its permissibility under the Taxing Power (in favor). At the time, everyone was focused on the fact that CJ Roberts was willing to vote to uphold the mandate as a tax, but that framing overlooked a more basic question: Why was the case ideologically polarizing at all?

Based on prior cases, there was nothing unexpected about the more conservative justices being more skeptical of federal power than the more liberal justices, but that doesn't really tell us why the issue was controversial. After all, the question whether Congress could issue mandates hadn't really arisen before. Once we knew it was going to be ideologically divisive, it was easy to predict how, but there are lots of federal statutes that do something a little new that don't create ideological divisions on the Supreme Court. And the core idea for the mandate was originally embraced by some Republicans as a market-oriented alternative to government-run single-payer health insurance.  Conversely, one could imagine an alternative history in which a Republican Congress and president adopted the mandate over the objections of libertarian-minded liberals. Indeed, during the 2008 primaries, then-Senator Obama sounded objections in this register.

Thus, the mandate became an ideologically polarizing issue on the Court, but it wasn't inherently polarizing on left/right grounds. It was contingently polarizing. It is possible to imagine lots of issues that could have that characteristic--where ideological opposition mostly originates from the fact that the other team is behind the program, not from the nature of the program itself.

There are also issues that are inherently polarizing. Many of the ideologically polarizing issues with which we are familiar have this characteristic and few of them are likely to go away. Abortion, affirmative action and race more broadly, campaign finance, the death penalty, gun regulation, and various other divisive issues will likely remain so for the Court for the foreseeable future, even if they end up dividing 6-3 rather than 5-4.

I suspect that LGBT rights as a wedge issue will increasingly fade. That's true for same-sex marriage already and could soon be true for trans rights. Notably, Ted Cruz tried to run on an anti-trans-accommodation platform in the primaries and got little traction. In the Republican primary.

That's not to say that politicians won't attempt to mobilize around anti-LGBT issues. The challenge to the Obama Title IX policy is already dividing the justices on predictable left/right grounds. But I think that, as with gay rights, so with trans rights, eventually this issue will lose its ability to raise the blood pressure of enough social conservatives to make it worth pursuing for wedge purposes--with an important exception to which I'll come in a moment.

So what will be the next big wedge issue? Another way to ask that question is this: If I were an evil genius working for Republican candidates for office, what looming social change could I tap to energize fear and outrage? Fear of terrorism seems like an obvious choice, but that's not really a new issue.

Meanwhile, the Trump campaign has shown that to mobilize reactionary impulses, one doesn't really need a coherent plan or an objection to a particular plan by opponents. It's notable that most of what Trump complains about from Clinton is imaginary: her imagined plans to disarm America; her imagined plan of open borders; etc. These imaginary outrages may be good for mobilizing voters but it's hard to see how they translate into court cases.

Or maybe it's not so hard. For some years now, conservative pundits and politicians have been mobilizing against the imaginary War on Christmas. Even though there is no such thing happening, the courts are already facing significant polarizing litigation based on the premise that laws granting contraception benefits and requiring public accommodations for LGBT persons infringe the religious rights of religious conservatives. Religious accommodations aren't exactly a new wedge issue, but they promise to be a potent one.

Interested readers are invited to propose their wedge issues. Bonus points to anyone who proposes good wedge issues for Democrats.

Trump is Weakness in an Uncertain World

by Neil H. Buchanan

This past Sunday, in the immediate aftermath of the scary (but thankfully non-lethal) terror attacks in the U.S., one of Donald Trump's surrogates said: "Trump is strength in an uncertain world."  This was, in its way, completely to be expected, because Trump has always tried to exploit fear, especially when the public psyche is most vulnerable.  "You're scared.  I'm strong.  Let me do what I want."

As unexceptional as that comment was under the circumstances, however, its simplicity cleared away the fog and exposed the fraud that Trump has tried to perpetrate on the American people.  Forget the ridiculous economic proposals, the misogyny and bigotry, the serial lies, and all the rest.  The biggest fraud of all is this preposterous idea that Trump is the strong leader we need who will make the world stop being so scary.  That is not merely false.  The man is actually weakness personified.

Trump is a bully surrounded by bullies.  Two of his most loyal henchmen are Rudolph Giuliani and Chris Christie, both of whom spent time while in office yelling at people who had no ability to fight back.  Each man belittled people for his own amusement and to show everyone how tough he is.

Trump, of course, is suddenly silent when he is actually standing next to, say, the President of Mexico.  But put him in front of a friendly crowd, and he delights in talking about how tough he is.  He is a 70-year-old schoolyard bully, bragging to everyone that other people are weak.

For some voters, this is exactly what they want to hear.  After all, somebody was there to cheer on the bullies on the playground, and some of those people did not grow up, either.  As long as there is someone else there to target for abuse, it makes them feel good to be one of the victimizers and not the victims.

Interestingly, there is polling that investigates these attitudes.  In a recent op-ed, Thomas Byrnes Edsall reported the results of polls from the Public Religion Research Institute, which asked people whether they agree or disagree with the statement: "Society as a whole has become too soft and feminine."  Only one religious group, white evangelical protestants, even had a majority agreeing with that statement (53 percent).  But 68 percent of Trump supporters agreed.

This lines up nicely with Professor Dorf's post last week, in which he argued that Trump's attacks on Hillary Clinton's health are a way to remind voters that she is not a man.  Of course, if one were to point to Clinton's steely toughness -- or even, for that matter, her hawkishness at times when I wish she had not been trying to prove her own toughness -- Trump and his posse would fault her for being insufficiently feminine.

The larger point, however, is that Trump's showy efforts to seem strong expose him as weak.  Adults know not to do or say the first thing that comes to mind when something bad happens, because the wrong response can make things worse.  Lashing out exposes weakness, because it shows how easily manipulated a person can be.  Trump says that foreign leaders do not respect President Obama because he does not use our military might to respond to every wrong in the world.  Adults know that starting wars should be a last resort, not the first thing that comes to mind.

Honestly, if I were on the other side of a conflict with Trump, I would be delighted by his childishness, because he exposes how little he knows in every ignorant saber-rattling rant.  He would be easy to provoke into a disastrous mistake -- one for which other people would pay with their lives, of course, while Trump would refuse to take responsibility.

Consider Trump's signature response to every scary situation, military or otherwise.  He immediately says that we should stop being so careful and start cracking skulls.  Why worry about reading people their rights when there are terrorists and evildoers on the loose?  The adults say, "It will do us more harm than good if we start presuming everyone guilty until proven innocent."  The angry child says, "But they're bad guys!  Why won't you let me punch them?"

Trump's impulse control is so weak that he cannot even be bothered to figure out what he is really saying.  As Leon Neyfakh wrote in Slate recently, Trump's insistence that police are being hamstrung by concern over constitutional niceties is actually an enormous insult to police officers.  Trump had said on Fox News, for example, that police officers are "afraid to do anything" because they worry about being "accused of all sorts of things."

As Neyfakh noted, however, Trump is quite literally saying "that police officers are aware of terrorists who are plotting attacks but are declining to pursue them because they’re scared" (emphasis in original).  As always, Trump has no proof of this outrageous claim, but more importantly, he is saying that the police are unprofessional.  If police have actual leads that they are not pursuing, then they are badly misunderstanding what they are and are not allowed to do.  I do not believe that our law enforcement officers are so poorly trained.  Trump apparently does.

But because Trump cannot prove that there are guilty people whom the police are ignoring, he must instead be saying that there are people with brown skin or funny-sounding names who are probably guilty of something.  The police, in Trump's view, must then be refusing to investigate those people, apparently contenting themselves by spending their time doing something else.  Are police officers instead harassing white people, because then civil rights lawyers will be happy?  There is not even any logic here to collapse on itself.

In an odd way, Trump represents the stereotype of the 1960's and 70's, which became associated with a "do it if it feels good" approach to life.  Tune in, turn on, drop out.  Take LSD or heroin now because it's a gas.  Who cares about tomorrow?

Violence is Trump's drug.  He wants immediate gratification, and he does not care about the hangover or the damage that his self-indulgence would bring with it.  "I want to get that rush, that high.  Give it to me now!  Damn the consequences, forget about tomorrow.  I'm scared today."  And if that is not weakness, what is?