Race to the Top: The Environmental Crisis, Animal Products, and Individual Choices

by Neil H. Buchanan

Although my next scheduled veganniversary column is almost eleven months away, I want to offer a few thoughts here about the meat-related causes of the Amazon crisis that Professor Dorf discussed in his column yesterday.  I will also draw from a column in the previous day's New York Times, which carried an op-ed by Farhad Manjoo under the pleasingly bold (and somewhat jarring) title: "Stop Mocking Vegans."

Those two pieces, along with my two-part 11th veganniversary column last month, provide a good framework within which to talk about the ethics of eating meat and the role that small-c capitalism has played in moving us at least a bit in the right direction.  The fact is that veganism -- or at least large-scale partial veganism -- is a necessary and central part of any effective response to the global climate crisis.

Overcoming people's attitudes about veganism, however, remains a frustratingly stubborn barrier.

Amazonia, Deforestation, Feed Crops, and Collective Action

by Michael C. Dorf

The immediate cause of the unfolding catastrophe in the Amazon is political. Jair Bolsonaro, like other right-wing populists elected to power in recent years, strongly signaled indifference to environmental devastation, which emboldened farmers, ranchers, and miners to set fire to the rain forest in order to clear land for commercial gain. Under intense domestic and international political pressure, the Bolsonaro government has begun deploying the military to put out the fires and begin enforcing environmental laws. These efforts are of course welcome, although Bolsonaro's rejection of aid offered by G-7 countries and his own record cast doubt on his commitment.

In any event, the long-term crisis is only partly amenable to government-led solutions, in Brazil and throughout the world. Consumer eating habits must also change.

The Housing Market Continues to Prove That Economics Is a Guessing Game -- Even For Dissenting Economists Like Me

by Neil H. Buchanan

When I write about economics, I typically explore the many ways in which orthodox theory is wrong.  Very, very wrong.  In particular, I have spent a great deal of time (see recent links here) explaining how the notion of economic efficiency (or Pareto efficiency, for the jargon nerds) is a facade that allows conservative economists to pass off rank opinionating -- Minimum wages are bad!  Corporate taxation distorts the economy! -- as objective science.

My counterclaim is not that those of us who dissent from the orthodoxy possess what mainstream economists only claim to possess: an objective theory that transcends morality, politics, and human judgment.  Instead, I say simply that there is no way to wring philosophy and ethical choices out of policy decisions, so we should respect facts and logic but be aware of where those things end and human judgment begins.

This does not always prevent areas of agreement between the majority and the dissenters.  For example, most economists who pray at the altar of efficiency nevertheless believe in responsive monetary policy to stabilize the economy, and most also agree that countercyclical fiscal policy is a good idea at least in relatively extreme cases like the Great Recession of 2008-09.  We all agree that spending public money to subsidize individual businesses or industries is either a waste or at least must be justified by some policy goal (such as developing alternative energy technologies).

Perhaps the safest area of agreement and overlap, however, is in our attitudes toward home ownership subsidies, most particularly our universal disparagement of the mortgage interest deduction (MID) in the tax code.  Recent evidence suggests, however, that at least one of the underlying points of agreement is one on which we might all be wrong.  What if the MID simply does not matter much at all?

Strange Bedfellows: Structural Arguments and Originalism

By Eric Segall

I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should be wrestled with by originalist scholars who favor the results in these and similar cases.

Congress Should Fashion a Jeffersonian Fix to Trumpian Royalism

by Michael C. Dorf

Just days after Donald Trump likened himself to a Biblical King of Israel, he asserted a power that might be better associated with the King of America. Miffed that China was taking the predictable and predicted step of responding to Trump's tariffs on Chinese goods with tariffs on American goods, Trump tweeted the following remarkable edict: "Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing our companies HOME and making your products in the USA."

"Start looking for an alternative to China" is sufficiently nebulous that one might think or hope that the order was meaningless, but no, later the same day Trump followed up with a tweet that showed he had spoken to someone in the administration with some legal training who had told him how he might justify enforcing some sort of actual trade restriction. He invoked the Emergency Economic Powers Act (EEPA) of 1977.

To be sure, when asked a question at the G-7 meeting in France, the mercurial Commander in Chief acknowledged having "second thoughts" about his escalation of the trade war with China. But then a White House spokesperson claimed that the only second thoughts Trump was having regarded whether to escalate even further. And then Trump announced a new round of trade talks with China, while praising Xi Jinping. Whether Trump attempts to follow through on his ostensible order should those talks fail to produce a deal is thus entirely unclear. I won't hazard a prediction of what will happen five minutes after I publish this column. Instead, I'll focus on the legal and policy questions raised by the initial assertion--that the EEPA gives him the authority to order US companies to cease doing business with China.

Conservative Posturing vs. the Logical Incoherence of Efficiency in the Takings Context

Note to Readers: Yesterday, Verdict published my new column: "Elections, the Economy, and Trump: Part One."  There, I explain why Donald Trump's claim that the economy is great (and thus that he should be reelected) is pure nonsense as a matter of economic reality.  My column here discusses a different topic entirely, but I encourage interested readers to take a look at that Verdict piece as well.



by Neil H. Buchanan

Earlier this week, I returned to my recent musings about the incoherence of economic efficiency as a theoretical construct, much less as a practical guide to law or policy.  There is, I am both happy and sorry to report, more to say.

My overall point in that column was that the lack of a baseline against which to measure economic efficiency (in any context) is especially devastating to any conception of what counts as a regulatory taking -- that is, a claim that the government has done something that made an owner of property poorer by changing (or wiping out) the value of the property.

The problem is even worse than it seems, however, because the theoretical baselessness of economic efficiency makes it impossible objectively to measure the value even of a classic (non-regulatory) taking, that is, an actual seizure of property.  Any change in government rules will of necessity change what would count as the fair-market values of all property, and indeed a change in those rules (motivated by some other policy purpose) could even make some properties valueless.  For example, an owner of rural land who would be happy to have a new highway go through the property can be left with nothing if the engineers determine that the highway's route should be changed.  Thereafter, "just compensation" for actually seizing that property would be (by assumption) zero.

Here, I want to expand on an important aspect of the baseline problem in the takings context, partly because it is so fascinating but mostly to connect these arguments to a theme that has shown up repeatedly of late here on Dorf on Law, which is that conservatives' pretensions to offering objective, neutral, and non-ideological analyses in both economics and law are a lot of hot air.

Trump's (Sort of Revived) Proposal to Cut Capital Gains Taxes Unilaterally is Illegal, But Could He Get Away with it?

by Michael C. Dorf

Earlier this week, President Trump re-floated an idea that he and various GOP politicians have previously proposed: the notion that via unilateral executive action, he could effectively cut the capital gains tax by indexing the cost basis of investments to inflation.  As of this writing, Trump has backed away from that idea; but given how quickly he changes his mind, this or a similar proposal could be back on the agenda within a matter of weeks or days, if not minutes.  Notwithstanding that uncertainty, therefore, this seems like a good moment to offer an analysis of Trump's proposal.

As Prof Buchanan explained in a column last year, even a person who somehow concludes that such indexing would be a good idea as a matter of policy must nonetheless concede that a different policy choice has been made by Congress, which provided for inflation indexing in other statutory provisions but not in the capital gains provision.

Accordingly, an Office of Legal Counsel memo (from p. 136 of the link) in the Bush I administration concluded that the President and Secretary of the Treasury lack authority to construe cost in the calculation of taxable capital gains as inflation-adjusted cost. As Prof Buchanan notes, proponents of executive unilateralism on capital gains argue that the 2002 SCOTUS ruling in Verizon Communic. Inc. v. FCC fatally undercuts the argument of the Bush I OLC, but that's just not true. As Daniel Hemel & David Kamin explain convincingly in a recent article in the Yale Journal on Regulation, the Verizon case at most undercuts one relatively unimportant argument on which the OLC memo relied. Overall, there remains no good basis for executive unilateralism here.

But wait. Could the Trump administration get away with a unilateral executive capital gains tax anyway? Suppose that Trump asks AG Barr to pressure OLC to rescind the Bush-era memo, that it complies by giving a torture-memo-style fig leaf of cover, and that the IRS then treats all returns taking advantage of the inflation-adjusted basis as lawful. Would anyone have standing to challenge the new policy? It's true that the government's failure to collect tax revenue lawfully owed by some taxpayers could harm the rest of us, but that sort of diffuse harm is a so-called generalized grievance for which standing is disallowed. So Trump could get away with it, right?

The Truth Hurts: Why All the Angst About the Senators' Amicus Brief?

By Eric Segall

Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief  "an extraordinary threat from one branch of government to another." As the Washington Post notes, "the Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an 'enemy-of-the-court brief' — and the National Review’s David French called it “astonishing.” Even, liberal law professor Larry Tribe said the brief "was inappropriately — and stupidly— threatening,”

The case involves a relatively silly New York City gun law that has been repealed and cannot be reinstated absent a change in governing New York State law. In other words, the case is almost certainly moot, as the amicus brief correctly suggests and Professor Tribe argues in his remarks about whether the Court should hear the case. But the hoopla isn't about federal jurisdiction but rather the Court as a political institution. The brief is remarkably snarky while also being astutely accurate. As a matter of strategy, the brief may not succeed. As a matter of truth-telling, academics should be praising its substance, if not its style. 

Takings and Efficiency: Incoherence Meets Incoherence

by Neil H. Buchanan

The search for a neutral, non-ideological, apolitical answer to policy questions is both admirable and doomed to fail.  It is admirable because we should all want to live in a world in which there is a way to say with confidence, "This is simply true, not as a matter of political preference but as a matter of logic and evidence."  It is doomed to fail because, in the end, policy questions are political, and there is no natural baseline against which we can measure any and all policy alternatives.

That is not to say, of course, that there are no objective facts or even that there are no reliable conclusions that can be drawn from facts.  There are no facts, for example, supporting the claim that Barack Obama bugged Donald Trump's offices (nor are there facts supporting much of anything that Trump says).  There are, however, facts that so strongly support the conclusions that species evolve and that the climate is changing -- just to choose two leading examples-- that one can readily conclude that anyone who denies those scientific conclusions is acting in bad faith.

Even so, it is a fool's errand to try to describe a method by which policy choices can be compared against a neutral baseline to deem them efficient or inefficient.  I have run through various versions of that argument in columns here on Dorf on Law over the past few months (here, here, here, here, and here).

Today, I want to extend that argument to the legal doctrine known as takings, demonstrating that the problems with the efficiency notion carry over to the takings doctrine, rendering it just as subjective as every other attempt to apply orthodox economic theory to real-world problems.

Brexit, Boris, Trump, and the Relative Virtues and Vices of Constitutional Entrenchment

by Michael C. Dorf

In both the US and the UK, serious people now worry that the leaders of government could attempt to retain power after being voted out of office. DoL blogger Neil Buchanan has repeatedly explained (e.g., here) why we have reason to fear that Donald Trump could lose the 2020 election yet receive enough support from Republicans in Congress and elsewhere to claim a fig leaf of legitimacy for staying on while claiming voter fraud or the like. Meanwhile, last week the NY Times reported on a looming scenario in which Boris Johnson could lose a parliamentary vote of no confidence yet defy convention and the tacit assumption behind the Fixed-Term Parliaments Act that a sitting PM should yield power to a new PM capable of forming a government pending a new general election; instead, Johnson might call a new election but remain in office pending its outcome, even after the no-confidence vote. And all of that would happen as the UK crashed out of the EU.

The Times article points to a similarity between the US and the UK, indeed, to a similarity among all constitutional democracy: given the impossibility of anticipating and constraining every opportunity for amoral would-be tyrants to seek advantage, no politico-legal system can operate without some degree of good faith by a critical mass of key officials. Perhaps in the US that would mean the Supreme Court and in the UK the Queen stepping in to block the de facto coups of Trump and Johnson, respectively.

However, in both countries there are reasons to doubt that the deus ex machine would come to the rescue: here the Republican-majority Court's willingness to appear (some might say to be) partisan could lead to invocation of the political question doctrine (see this past Term's political gerrymandering case) or some substantive basis (see Bush v. Gore) for sustaining Trump's coup. In the UK, the Queen might well adhere to the longstanding norm of royal political neutrality, even as Johnson was flouting other longstanding democratic norms.

I agree with the observation that democracy everywhere depends on norms and some measure of good faith. But just as the similarities in appearance, repugnance, and buffoonery between Trump and Johnson mask key differences (as explored recently by John Oliver), so too the differences between the US and the UK may be important in how and perhaps even whether each country survives an attempted coup by its respective clown-tyrant.

America's Health Care Dysfunction Gets Real

by Neil H. Buchanan

Yesterday was my first official day as an employee of the University of Florida.   The day included the usual experiences for a professional worker: seeing my office for the first time, signing up for internet service, getting a parking pass (which I will not need, thankfully), meeting a bunch of friendly new faces, getting lost in the building, and so on.  It also meant that I am once again covered by health insurance ... I think.

Because I occasionally write about health-care policy issues, this seems like a good moment to revisit a few of the many things that are so wrong with the current system in the U.S. -- not just for people who are uninsured or underinsured, but also for the very lucky ones like me who have what at least seems to be adequate (albeit expensive) coverage.  We often become so accustomed to those background facts that it is all too easy to allow the political conversation about health care to become utterly abstract.

I am at this very moment supposed to be choosing my health care plan (along with dental and vision), yet I am instead writing this column about the absurdities of the current system, explaining why this is not an acceptable way to run a nation's health care system.  The very desire to delay this annoyance is, of course, a key bit of evidence that there is something very wrong with the way even supposedly good coverage is administered.

One conclusion is clear: We can and must do better.

More Things in Heaven and Earth: What the Law Can Teach Moral Philosophers

by Michael C. Dorf

Last week and weekend, I had the good fortune to attend the 12th annual Rocky Mountain Ethics Congress (RoME), hosted by the University of Colorado Center for Values and Social Policy. Prof Colb gave one of three keynote addresses during the four-day conference, in a speech that was also the 2nd annual Tom Regan Memorial Lecture, co-sponsored by the Culture & Animals Foundation. For those unfamiliar with Regan's work, he was a pioneer in the animal rights movement. I italicize "rights," because while Peter Singer's Animal Liberation inspired much of the modern movement, Singer is a utilitarian who, following Bentham, regards rights as nonsense on stilts. Regan was the first philosopher to make a comprehensive set of deontological arguments for animal rights as such.

Although Prof Colb and I acknowledge the importance of Regan's work, as she put the point in her lecture, the way that scholars pay tribute to one another is by critical engagement with their ideas, and so she offered a critique of a point Regan made. Although Regan was (like us) a vegan who thought nearly all animal exploitation unjustified, he also thought that in triage situations, it is morally permissible, indeed obligatory, to prefer human life to other animal life. Thus, to use his examples, should four humans and one dog find themselves on a lifeboat that could only support four such mammals, the dog should be thrown overboard. Even more arrestingly, Regan said that one should throw over a million dogs before tossing a single human.

In her lecture, Prof Colb explained that although Regan thought experimentation on animals is wrong, his lifeboat examples open the door to experimentation and ultimately to all animal exploitation. I won't attempt to summarize the lecture (other than to say it was awesome), because my main interest in this essay is in the rest of the conference. As one of two legal scholars attending a conference of philosophers, I came away thinking there are many opportunities for fruitful engagement between legal scholars and philosophers. We legal scholars see where philosophy can be helpful; I'm going to suggest that philosophers can do more with the law.

Terrifyingly Effective Terrorism: White Supremacists versus the Field

by Neil H. Buchanan

Although the national conversation has -- rather incredibly -- already moved on from the El Paso and Dayton mass shootings (now covering awful-but-still-less-bad issues like Jeffrey Epstein and not-at-all-important matters like Joe Biden's flubs), I am still thinking about what it means to live in a country in which white supremacists are starting to take action on their hatreds more frequently and openly.

There is no doubt that what the white supremacists are doing counts as terrorism, because they are terrifying people to the point that children are being equipped with Kevlar backpacks and people are now afraid to do normal things in their daily lives.  The point of terrorism is to make people feel that they are never safe.  That is what domestic abuse does to an isolated spouse (almost always the wife, of course), and it is what national or international networks of terrorists aim to do to people in general.

This then raises a particularly grim question: Who is "best" at creating terror?  The answer is that, although white supremacists are possibly the least organized of all terrorist groups, they seem to have stumbled upon the most effective way to terrorize people.  How does that work?

Every Decent Person v. The Estate of Jeffrey Epstein: What Now?

by Diane Klein

The news of Jeffrey Epstein's death (apparently by suicide) in the federal Metropolitan Detention Center in Manhattan early on the morning of Saturday, August 10, 2019, has taken the Internet by storm, and spawned a thousand conspiracy theories.  Of course, there is a great deal that is still not known, and won't be known, until a much more thorough investigation is undertaken.  One thing is certain: the criminal prosecution of Jeffrey Epstein is over.  The death of the defendant brings any such legal action to an end.

Does that mean all the lawyers go home?  Not by a long shot. The legal farrago that is the Epstein matter carries on.

Originalism as Current Law? Yet Another response to Baude and Sachs

By Eric Segall

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important.

The Foolishness of Overestimating Trump

by Neil H. Buchanan

Democrats seem to over-learn certain lessons.  They lost to Ronald Reagan in 1980 and 1984 and decided that the U.S. was a "center-right nation" and that the best thing to do was to become Republican lite.  Bill Clinton later decided to cave to Republican demands for a balanced federal budget and -- when the dot-com bubble created prosperity and a temporary surplus -- Democrats decided that being fiscal hawks was the best approach, leading to Obama's foolish "pivot" to austerity in 2010.

As I have argued frequently (most recently here), Democrats have somehow convinced themselves that their policy views are unpopular, even though the Republicans are under water with voters on every major issue.  Somehow, it is always Democrats who are engaged in soul-searching and wondering why not everyone agrees with them about everything.  The big newspapers and networks are also now in an infinite do-loop as well, asking how "heartland voters" -- understood as what used to be known as Reagan Democrats -- feel about every issue.

The 2016 election was an even bigger shock to the Democrats (and the world) than 1980.  Reagan was seen as an easily beatable doofus, but at least he had been a governor and knew how to deliver a speech -- and had never bragged about sexually assaulting women.  We must of course learn to take nothing for granted, but that does not require treating Trump as some kind of political god who can only be beaten if all of the forces of the universe align in exactly the right way.

This is yet another version of what has long been called the Democrats' defensive crouch.  But it is worse, in ways that are causing Democrats inadvertently to make Trump stronger.

Second Thoughts About the T Word

by Michael C. Dorf

A recent Washington Post op-ed by Harry Litman occasioned by the mass shootings in El Paso and Dayton calls for the enactment of a federal statute criminalizing domestic terrorism as such. In light of various statements by law enforcement and other officials condemning the respective acts as domestic terrorism, Litman points to the seeming oddity that there is no federal domestic terrorism statute. (He acknowledges that the PATRIOT Act defines domestic terrorism but complains that it does not state a specific crime of domestic terrorism.)

Partly Litman makes a practical point. He says that a specific domestic terrorism law would "bring such crimes into the rubric of predicate offenses for providing material support to terrorists [and] would also provide more resources for the [FBI] on the data-gathering side as well as the prosecution side." Perhaps that's true, although it's not clear that existing legislation is insufficient. Rather, one might think that the resource problem, if there is one, stems from the Trump administration's decision to direct funds away from programs that combat far-right extremist violence.

Meanwhile, it's not as though the absence of a domestic terrorism statute means the El Paso killer is likely to go unpunished. He faces the possibility of state and federal murder charges. Consider another domestic terrorist, Timothy McVeigh. He was found guilty and executed based on charges of conspiracy to use and use of a weapon of mass destruction, destruction by explosives, and first-degree murder. Like the El Paso killer, he could also have been charged under state law. (I am only discussing the El Paso killer, because the Dayton killer is dead.)

Litman acknowledges that there is no shortage of laws under which the El Paso killer can be prosecuted, but he says that the possibility of charging him with these other crimes should not stand in the way of a federal domestic terrorism statute, in the same way that the existence of murder and other laws should not stand in the way of hate-crime legislation. Just as there is expressive value in calling hate-crimes what they are, so there might be expressive value in calling terrorism what it is.

There is, but there is also danger in doing so.

Good Faith in Law and Moral Obligation

by Michael C. Dorf

A former colleague of mine used to say that popular misconceptions about the law could sometimes be useful. The example he gave most frequently was the widespread but false belief that for a contract to be binding it must be written. That is not true, except in particular circumstances. Traditionally, the so-called statute of frauds made unenforceable oral contracts that could not be performed in a year or less, contracts for the sale of real estate, and various other oral contracts. Modern statutory schemes expand the categories for which a written contract is necessary. For example, the widely adopted Uniform Commercial Code requires a writing for a contract for the sale of goods for the price of $500 or more. However, as a general matter, oral contracts are binding.

Nonetheless, the popular belief that all contracts must be written to be binding has a salutary effect. It induces those who hold the belief to put their contracts in writing, which in turn greatly simplifies proving the existence and terms of a contract should a dispute arise. One might think that the resulting certainty has such great value that it justifies an actual legal rule requiring all contracts to be written to be binding, but there are countervailing reasons to think that most oral contracts ought to be enforceable. I am not now interested in resolving the policy question whether to extend the requirement of a writing to all contracts. Instead, I'm interested in exploring the potentially salutary effect of what might be thought to be a related misperception of contractual obligation--that contracts impose moral as well as legal obligations.

In my latest Verdict column, I discuss recent criticism by Golden State Warriors head coach Steve Kerr of NBA players demanding trades while they have considerable time remaining on their contracts. Kerr pretty clearly had in mind Anthony Davis's successful demand that the New Orleans Pelicans trade him to the Los Angeles Lakers and Paul George's successful demand that the Oklahoma City Thunder trade him to the Los Angeles Clippers. Kerr said that NBA players have every right to sign wherever they want when they are free agents, but that while they remain under contract, they owe their effort and loyalty to the teams the are on. He appeared to use the language of moral obligation, not just legal obligation.

Lock Him Up!

by Neil H. Buchanan

[Note to readers: The two mass shootings over the weekend continue -- quite rightly -- to consume people's attention.  I wish that I could think of something to add to the discussion, but for now, my thoughts are jumbled and my feelings are raw.  I have thus decided to write today on a different topic, one that is important but less immediate and less emotional.]

One of the most notoriously awful aspects of Donald Trump's campaign rallies in 2016 was the howling chants of "Lock her up!"  Indeed, the people who thrill to Trump's brand of ugliness so much that they decide to attend his speeches in person clearly reveled in those chants, relishing the two-minutes-hate pulsing thrill of imagining the hated Hillary Clinton being led off in an orange jumpsuit.

Reportedly, those chants continue to be part of the audience-participation show that is a 2019 Trump rally.  And we can certainly imagine that something like this will become part of the Trump cult's response to whomever is the Democratic nominee next year.  After all, they started the "Send her back!" baying when Trump decided to attack U.S. Rep. Ilhan Omar.  Name a possible Democratic nominee, any of them, and tell me that the Trump crowds will not do something like that again.  If one is honest, it is impossible to deny that this is inevitable.

Does it matter what the content of the chant is?  And would it make anti-Trump voters equivalently awful if they were to start shouting "Lock him up!" at campaign events?  I think that the answers to those questions are yes and no, respectively, but they are certainly interesting questions that deserve some respectful consideration.  What do you do when an unindicted criminal is in the White House?

Arizona's Long-Shot Original Jurisdiction Opioid Case in the SCOTUS

by Michael C. Dorf

As recently reported, the State of Arizona is trying to sue members of the Sackler family and Purdue Pharma in the US Supreme Court, invoking (in its complaint and accompanying brief) both a federal jurisdictional statute and Article III, Section 2 of the Constitution, which provides in relevant part: "In all cases . . . in which a state shall be party, the Supreme Court shall have original jurisdiction." The case falls within the subject matter of the federal courts because, in compliance with the prior paragraph of Article III, Section 2, it is a "controvers[y] between a State and citizens of another state." While the Eleventh Amendment curtailed such jurisdiction where states are defendants, it left such jurisdiction intact where states sue as plaintiffs.

Still, bringing this lawsuit in the US Supreme Court in the first instance is problematic in at least four ways.

Malcolm Gladwell Mangles Casuistry

by Michael C. Dorf

The fourth season of Malcolm Gladwell's podcast Revisionist History includes a great deal of material of relevance to lawyers. Episodes 1 and 2 critique the LSAT and time-pressured law school exams on the ground that they reward quick thinkers at the expense of slower-but-deeper thinkers. There's much in those episodes with which I agree. For just about all of my 27 years in law teaching I have given either 24-hour or 8-hour take-home exams rather than 3-hour in-class exams for exactly the reason that these episodes underscore: The real-life practice of law often puts time pressure on attorneys, but (except perhaps during a trial when an attorney must make split-second decisions whether to object to proffered evidence) rarely does actual legal practice involve the kind of time pressure that the LSAT and in-class exams place on test-takers.

That said, these episodes overclaim. For example, Gladwell contrasts chess grandmasters who are the best speed players with those who are the best players at a normal pace. Fair enough, but Gladwell fails to recognize that even those he calls tortoises are better at speed chess than nearly everyone else in the world, while even those he calls hares are better at normal-pace chess than nearly everyone else in the world. And likewise in law. Time pressure is a source of variation in performance, but it's not the only source and rarely the most important. Time pressure will affect the performance of various excellent lawyers differently. Some excellent lawyers are truly outstanding under time pressure; others are excellent; some are merely very good. By contrast, incompetent lawyers will be incompetent at any speed.

In the balance of this post, I want to focus on another set of flaws in Season 4 of Revisionist History. Episode 5 begins a three-part mini-series on casuistry--a method of moral reasoning closely associated with the Jesuits. The word casuistry is sometimes used as a synonym for sophistry or fallacious reasoning, but Gladwell uses it in its original and literal sense, as case-by-case reasoning rather than deductive reasoning from general principles. (Casuistry derives from the Latin casus, meaning case). I share some of Gladwell's appreciation for this form of reasoning, but I think his key illustrations misfire badly.

Debating Republican Talking Points: Bad Strategy or Good Practice for the General Election?

by Neil H. Buchanan

Based on my reading of much of the recent commentary from so-called centrists and NeverTrump conservatives, it appears that they experienced something of a group orgasm in watching this week's Democratic presidential not-at-all-debates.  Why?  Because they have convinced themselves that the less liberal candidates brutally exposed the supposedly crazy liberals for being totally unrealistic about health care.  In the estimation of this pearl-clutching crowd, Liz Warren and Bernie Sanders were laid low by the cold reality of centrist logic.

This is nonsense, of course, but it would nonetheless be useful to learn something about how progressives can change the framing of the health care debate going forward.  More generally, it is important to understand the difference between a healthy debate and an unhealthy debate at this stage of a campaign.

The short version of my argument below is that it is not at all healthy to frame opposition to Sanders and Warren on health care (or other Democrats on other issues) in ways that reinforce Republican narratives.  There is a way to hone arguments and to develop responses to Republicans' attacks, but that requires making clear that that is what we are doing.