Tuesday, March 31, 2020

Manly Men, Macho Grades, and a Proposal to Recognize "Excellence"

by Neil H. Buchanan

Trying to keep our corner of society running as well as possible under scary circumstances, professors in colleges and universities nationwide have responded to the global pandemic by changing our grading systems for (what we hope will only need to be) the current semester.  The most cynical way to describe such changes is that grading is now "easier," which is freaking out the guardians of nerd machismo in the academy.

I cannot possibly improve on my Dorf on Law co-blogger Diane Klein's magnum opus from this past Friday, in which she systematically dismantled the arguments recently on offer from three law professors who have railed against the temporary grading changes -- although, as Professor Klein points out, it is frequently unclear whether their complaint is actually about curved grading more generally or, perhaps, simply an objection to noticing that our students are human beings who differ from each other in relevant ways.

Again, the Klein essay is masterful.  Although it is longer than the usual Dorf on Law fare, the subject demands extended analysis and she delivers.  It is well worth readers' time.

Here, I want to do two things.  First, I will add some observations in support of the obvious fact that these pro-tough-grading arguments are a bizarre form of what we might call performance masculinity.  Second, I will argue that, at their very best, those arguments actually support not a "rigorous" grading system but simply a grading lottery.

No, your eyes did not deceive you.  I am saying that the argument from the manly men, when taken to its logical conclusion in conjunction with what we know about our students' differences during the crisis, leads to the conclusion that we should simply assign letter grades via a random number generator.

I am not saying that this is a good idea, mind you.  I am saying that it would have been better than keeping grade distinctions (including "high passes" or "satisfactory-plus" grades) in the way that the protectors of manhood wanted us to do.

Monday, March 30, 2020

Optimistic Originalism by Professor Stephen Griffin: A Must Read

By Eric Segall

Law professors and other scholars write new articles about Originalism almost every day of the week. The sheer volume of this content makes it quite difficult to separate the wheat from the chaff. Every now and then, however, an article comes out that makes a seriously new and important contribution to the subject matter. Professor Stephen Griffin's "Optimistic Originalism," is one of those articles.

One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."

Friday, March 27, 2020

Of Prisoner's Dilemmas and Straw Men: A Response to Blackman, Adler, and Krauss on Law School Grading

by Diane Klein

Dramatic (probably temporary) changes to grading policies are afoot in America's law schools, and in higher education more generally, in response to COVID-19, the all-online transition, and the seismic disruption taking place in education across the United States.  No sooner had thousands of faculty members figured out how to deliver their courses over Zoom and similar platforms, many for the first time ever, than the inevitable subject of grading had to be addressed.  Right now, when deadliest day follows deadliest day in the crisis, a subject like law school grading policy is a matter of urgent concern to only a tiny fraction of the U.S. population - consisting, in rapidly descending order, of U.S. law students themselves (about 113,000 nationwide), law faculties and administrations, and legal employers.  Most of the rest of the world probably could not care less.  But if you do care, keep reading!

Even Now, Suspending All Taxes Is Unnecessary (and Insane)

by Neil H. Buchanan

The U.S. Senate has now unanimously (!) passed the $2 trillion dollar stimulus bill that had been temporarily delayed while Democrats tried to reduce what we might as well call the "corruption premium" that Republicans had built into their initial proposal.  I continue to believe that, even though this is the "the largest fiscal stimulus package in modern American history" (as The New York Times insists on putting it, even though that claim is acontextual and means nothing), much more will soon be needed.

In my paired Verdict and Dorf on Law columns earlier this week, I argued that it would have been acceptable for the Democrats to agree to pay the bribes that the Republicans demanded, because we should simply admit that one of our major political parties is not going to treat this most serious of situations any different from any other.  They exploit every situation to push through regressive money grabs, and in this crisis the need for speed supersedes the desire to prevent distributive injustice (aka reverse-Robin Hoodism).

For the record, I am delighted that the Democrats were able to improve the bill as much as they did, in particular by creating what appears to be genuine oversight of the half-trillion-dollar slush fund over which Treasury Secretary Steve Mnuchin had been all but salivating.  The Democrats took some short-term public-relations hits by being the party that voted no, but what they extracted with only an extra couple of days of hard negotiating was impressive.

As I wrote above, however, this is the first of what will probably be multiple trips to the well.  When it quickly becomes clear that one-shot payments to no-longer-working Americans that amount to a few weeks' pay will not do the trick, what will Republicans demand in exchange for what they will surely brand as "another round of government handouts"?  And no matter what they demand, how should Democrats respond?

To pose the question more bluntly, is there any limit to my argument that the times demand that Democrats allow Republicans to grab what they can, hoping that at some point in the post-crisis future (but maybe not even then) we can revisit the injustices that Republicans insist upon extorting in exchange for their consent today?  Are things truly that desperate?

The best way to think about this is to look at the most extreme Republican crisis-based claim that I have seen to date: That we should shut down the U.S. tax system.  This is truly a WTF idea, but is it too much in the current crisis?  Yes it is.

Thursday, March 26, 2020

The Potentially Deadly Toll of a Law Professor's Libertarianism

by Michael C. Dorf

My Verdict column calling for a national lockdown and, if needed to ensure its enforcement, suspension of habeas corpus, continues to receive pushback. Some of that pushback has a through-the-looking-glass quality, like this piece in RT, which for those unfamiliar, is a Putin-backed propaganda outlet for pro-Trump and other trollish views. I shall wear being called an "authoritarian minded law professor" by an organ of a foreign authoritarian as a badge of honor.

That said, the RT article makes a valid point: people who raise doubts about lockdown policies could have a legitimate argument and thus should be given a hearing. Today I'll look at the most prominent law professor to make the case that we are overreacting: Richard Epstein. His views do not withstand even the most minimal scrutiny and may already be responsible for serious real-world effects.

Wednesday, March 25, 2020

And Now, Charybdis: The Risks of Recording (Especially Synchronous) Classes

by Diane Klein

In two recent posts, I have presented some arguments in favor of recording your classes and captioning those recordings, based primarily on accessibility issues, including economic ("digital divide") and pedagogical/legal concerns, and the costs and risks of failing to do so.  Without taking any of that back, I'd now like to present the other side: not arguments against taping per se, but some of the distinctive risks associated with recording your classes - and especially, synchronous classes in which students participate.  In the absence of clear institutional taping policies, the problems are non-trivial, the best way to negotiate through them is far from obvious, and the right choice for one class, school, or professor may not be the same as for another.

Tuesday, March 24, 2020

Hostage-Taking, Bribes, and the Republican's Stimulus/Bailout BIll

by Neil H. Buchanan

As of this moment (late Monday morning), there is still no deal on an economic stimulus/bailout bill in the U.S. Senate.  Whenever a deal goes through, the result will be deeply flawed and almost certainly inadequate to the moment.  That means that we will go through this again, probably very soon.  What should senators who mean to do good (that is, not Republicans) do in the current situation to minimize the damage and maximize the positive impact?

In my new Verdict column today, "What Should Democrats Do About Republicans’ Insistence on Lining Their Own Pockets With the Stimulus Plan?" my advice for Democrats (in the form of more than two thousands words) boils down to this: Fold.  Give up.  Feel good about trying to make the bill less of a money-grab for Republicans and their backers, but get it over with.  Something is better than nothing.

Allow me to elaborate.

Monday, March 23, 2020

Indefinite Detention? Trillion-Dollar Coins? A Framework for Thinking About Emergency Measures

by Michael C. Dorf

Just over a week ago, I urged Congress to enact legislation "locking down" the country and, if necessary, temporarily suspending the privilege of the writ of habeas corpus. As I related in a follow-up essay here on the blog, most of the critical commentary on my column focused on habeas suspension, even though I did not and do not regard that as the core of the proposal. For me, the key is lockdown. I am heartened that in the intervening period the governors of several of the hardest hit states (including NY, where I live) have issued stay-at-home policies. I think most of these policies are too lenient for this stage of the crisis and that broader federal action is needed, but something is better than nothing.

Meanwhile, on Twitter and elsewhere, various commentators questioned my willingness to give sweeping power to President Trump and his administration, whom we have good reason to distrust. I responded in my blog post that that is the reason I would want Congress to include sunset provisions, so much as practicable to specify details, and to delegate to medical professionals like Dr. Fauci, but I acknowledged that a substantial degree of discretion in the implementation of the policy would inevitably end up in Trump's hands, and that while that is a very substantial worry, I did not see a good alternative.

In the balance of today's essay, I want to elaborate a framework for thinking about emergency measures. I'll orient the discussion around two proposals: a collection of requests from the Department of Justice (DOJ) to Congress for substantial changes to how courts operate; and Representative Rashida Tlaib's proposal to give everyone in the US a $2,000 debit card plus $1,000/month so long as the coronavirus crisis persists, all funded by the Treasury minting two trillion-dollar coins to be purchased by the Fed.

Sunday, March 22, 2020

Parenting in the Age of the Coronavirus

By Eric Segall

Like millions of parents here and abroad, my wife and I are trying to juggle our work responsibilities (Lynne is a business school professor) with our parental duties while we are effectively home bound other than walks around the neighborhood with our dogs and occasional trips to the grocery and pharmacy. Our daughters are Sara, 12 and Katie, 11 (I also have a 29 year old daughter Jessica who is safe and sound elsewhere).

It appears that this is going to be our way of life for a while so I thought I would share a few thoughts and questions about what Lynne and I are going through right now to keep our children safe, sound, and sane. If you're looking for clear answers to the issues I am going to raise, you might want to stop reading now. Also, I am not claiming any special expertise regarding parenting but writing this in the hopes of, maybe, making other parents feel not so alone when essentially, other than our immediate families, and communicating via various technology, we are mostly alone.

One of the hardest decisions parents have to make in good times and bad is whether to employ clear rules or flexible standards (an issue also of course facing legislators, executives, and judges as well). "Never jump out your third story window," would be an example of a clear rule (with an implicit emergency exception built in), whereas "eat a reasonable amount of ice cream," would be a fairly flexible standard. Because anarchy is not a realistic option for most (maybe all) households, we, like all parents, have to communicate to Sara and Katie a laundry list of rules and standards.

Friday, March 20, 2020

COVID-19 Part 7: The Chinese State's Evolution

by Michael C. Dorf

Donald Trump's repeated references to SARS-CoV-2 (the coronavirus that causes COVID-19) as a "Chinese virus" encourages racism against Asians and Asian Americans, undercuts the willingness of the Chinese government to provide us with vitally needed assistance that it is almost uniquely positioned to provide, and serves to distract Americans from the ways in which his administration has, through incompetence and egotism, turned what would have been an extremely challenging public health emergency for any normal President into a catastrophe.

There is still time to act to greatly reduce the destructive impact of COVID-19, but the time is now. A national lockdown of the sort that California is now implementing for even as little as three weeks would slow the spread of the virus and buy sufficient time to ramp up testing so that the U.S. could shift to the sort of extensive testing and individual isolation regimes that have allowed South Korea, Singapore, and Taiwan to fight the virus without shutting down ordinary life. If you haven't already, read this for a fuller picture.

With effective border control, China, where for two days in a row, there have been zero cases of local spread, can now move to something like the testing-plus-isolation regimes that its East Asian neighbors adopted earlier in their respective epidemics. And that leads me to today's topic, which is inspired by the COVID-19 pandemic but actually about something else entirely: what the Chinese government's response to the outbreak tells us about the nature of that government.

Closed: Captioning, Compliance, and the All-Online Transition

by Diane Klein and Brian Grewe, Jr.

So, how's that all-online transition going for you?  If you're anything like the 500+ (600+ as of March 22) members of "Pandemic Pedagogy: Law in a Time of Coronavirus," a Facebook group I spun off of the enormous "Pandemic Pedagogy" group (23,000 teachers from K-12 on up), the answer is decidedly mixed.  So I hate it to make it worse by talking about something else you're probably not doing - but should be: captioning your lectures.

Thursday, March 19, 2020

Yes, We Must Throw Money at the Problem

Note to Readers: My new Verdict column, published today, is titled "Can the Republicans Cancel the Elections, Even Though Trump Can’t?There, I discuss an unusual route by which one or two Republican governors could "win" the election for Trump by shutting down their states' voting.  Enjoy!  My column below discusses a completely different issue.


by Neil H. Buchanan

Today, I am going to say something good about the Trump Administration.  There is no need to reach for the smelling salts, however, because I readily acknowledge that the good thing that they are doing -- throwing money at the economy when that is exactly what is called for -- is entirely cynical and poorly thought out.  But credit is due for breaking with orthodoxy, especially their own particularly pernicious orthodoxy about the national debt.

There are some habits of mind that are simply hard-wired.  One particularly damaging one is for political pundits -- including self-identified liberal pundits -- to use terms like "fiscal responsibility" and "balanced budgets" reflexively as proof of their own seriousness.  Years ago, for example, a New York Times writer chided then-Senator Barack Obama for being too ambitious, saying that rather than running for president, Obama should have stayed in the Senate and fixed America's problems, such as Social Security's supposed crisis.

The fact is that Social Security does not face a crisis and never did.  Among many, many of my columns on this topic, this one from 2012 (!) is representative.  And as I discussed at length in a 2017 law review article, younger generations are not being cheated by Baby Boomers via Social Security.  Even so, one of the safest thing for any pundit to do -- especially pundits who know virtually nothing about economics and must hide behind bromides that they have absorbed but do not understand -- is to intone solemnly that "we must fix Social Security for the good of future generations."

And so it is with budget deficits and debt more generally.  Just this week, Washington Post columnist Dana Milbank -- the quintessence of a self-satisfied neoliberal centrist -- wrote this: "The government, and the U.S. political system, had failed for years at such routine tasks as balancing its books and forging policy consensus. Now, it is failing catastrophically at its most basic function: protecting the American people."

All I could think was: What a tool!  For one thing, the reference to book-balancing was entirely irrelevant to the point that he was making.  For another, he was writing in an environment that screams for us to break out of bad habits and see things clearly.  Even though I agreed with Milbank's major thrust -- that while Trump "has unquestionably made things worse ... he merely exploited a political system that has been unraveling for a quarter-century or more" -- reinforcing the conventional wisdom about balanced budgets was simply irresponsible.

Here, I will explain why balanced budgets (which are never a good idea) are a particularly terrible idea now, and that we should be "busting the budget" like there is no tomorrow.  Along the way, I will explain how and why Trump and the Republicans will screw this up.

Wednesday, March 18, 2020

Chief Justice John Roberts, the 2020 Election, and the Politics of Judicial Review

By Eric Segall
     
     While our country is reeling from the chaotic effects of the Coronavirus, those of us with expertise unrelated to medical issues should probably keep doing what we do. Even though the Supreme Court has postponed new oral arguments, there is a crucial election in November and major constitutional law cases will still be decided by the Court this term. This essay shows how the two are related.

Tuesday, March 17, 2020

COVID-19 Part 6: Toilet Paper, Gasoline, and the Calming Effect of Boredom

by Neil H. Buchanan

The crossover punk/pop band The Offspring's 2008 song "Stuff is Messed Up" (which uses different words for "stuff" and "messed" in the refrain) includes these memorably sarcastic lines:
Now thank God for the media
For saving the day,
Putting it all into perspective in a responsible way.
To look at photo after photo of empty grocery store shelves in newspapers, along with onsite "news" segments with pseudo-reporters standing with empty shelves behind them, one might think that there had been panic buying that left grocery stores across the country denuded of all items.  If one looks at some of those photos closely, however, it is possible to see in the background that other shelves are well stocked, with the scenes framed to appear to be post-apocalyptic.

Most readers will have seen this for themselves by now, I suspect, but I can report from personal experience that my local markets have run out of toilet paper and hand sanitizers and some soaps, but none of the other shelves are even close to empty.  Indeed, the last time I was at my local Publix (two days ago), everything was normal, and employees were methodically restocking various items.  But again, even a supposedly top-tier news sources like The Washington Post is now using a photo of empty shelves where toilet paper was once available as its default for even unrelated coronavirus articles.

So what is going on here?  And is the future to become what the media is already incorrectly portraying current reality to be, with stores turned into scenes from dystopian fiction?  Happily, there is a way to use some basic logic and knowledge of simple business economics to understand why there is no fundamental reason to worry and that Franklin Delano Roosevelt was right that the only thing we have to fear is fear itself.

Monday, March 16, 2020

Making the All-Online Transition Across the Digital Divide

by Diane Klein

Most of us wouldn't teach a class that required note-taking with pen and paper, if we knew in advance that many of our students didn't have those things.  But that's exactly what we are doing with the all-online transition in America's schools in response to the coronavirus crisis.  For students who fall on the wrong side of the "digital divide," it won't matter how good a job faculty do trying to overcome all the challenges inherent to delivering effective instruction online in the weeks and months to come.  They'll miss out all the same.

COVID-19 Part 5: I Call for a National Lockdown and Habeas Suspension

by Michael C. Dorf

Yesterday Verdict published my call for a national lockdown and the suspension of habeas corpus as a means of ensuring that no court enjoins it. I am fully aware that the column takes some controversial positions, including positions that I would not take--indeed positions that would likely outrage me--in other circumstances. The boldest such position is my contention that Congress could invoke the Suspension Clause on the ground that a lethal virus that originated overseas and now threatens the lives of millions of Americans counts as an "Invasion." Today I want, not so much to defend that view, as to explain my approach.

Friday, March 13, 2020

An Online Place

by Diane Klein

Suppose the faculty, staff, and students at nearly every institution of higher learning in the United States woke up tomorrow in the plot of "A Quiet Place."  Terrible fatal monsters were stalking their schools, sensitive to the very least sound.  In response, university administrations ordered everyone to begin using American Sign Language (ASL) for all instructional activities, immediately.

Thursday, March 12, 2020

Supremely Elite: How Democrats Can Make the Justices a Winning Campaign Issue

By Eric Segall

[Disclaimer: With everything going on right now, I know there are much more urgent matters that need addressing than the role of the Supreme Court in the next election, but I’m not a doctor and don’t even play one on TV so I guess I will march on with what I know. My heart goes out to all those affected by the virus.]

As the 2020 general election approaches, Democrats should take heed that exit polls taken after the 2016 Presidential election showed that approximately one-quarter of Donald Trump supporters said the Supreme Court was the most important reason why they voted for him. Trump made the Justices a visible issue in the campaign by saying he would nominate people like the late Justice Antonin Scalia and by publicizing a list of potential Supreme Court nominees, most of whom belonged to the conservative Federalist Society. In September, 2018, just before the mid-term elections, 76% of people polled said the Supreme Court was “very important” to their vote. President Trump and the GOP are likely to politicize the Supreme Court again in the 2020 election.
    
Democrats cannot afford to be passive on this issue, but neither should they emphasize traditionally controversial legal topics such as abortion, gun control, and the separation of church and state. For example, Republicans have long used abortion successfully as a campaign issue. Instead, Democrats should focus on how the Supreme Court has been the best friend of the rich and powerful and the enemy of the middle class, the poor, and minority groups.

Oral Argument 2.0 Launches

Posted by Sherry F. Colb & Jareb A. Gleckel

Even as we all fearfully watch and do what we can to mitigate the pandemic that understandably has taken up nearly all of our attention, other developments occur. In the hope that we might distract readers from graver matters, today we announce a project that has been in the works for some time: Oral Argument 2.0

Wednesday, March 11, 2020

Living in Denial vs. Confronting Our Fears

by Neil H. Buchanan

Until now, I have not felt that I could write about the coronavirus and the accelerating health emergency that has already changed day-to-day life for many Americans (and even more people around the world).  When I considered devoting a full column to the topic, I quickly realized that I simply did not want to do so.  Why did I feel that way, and why did I change my mind today?

The short answer to the latter question is that Professor Dorf's excellent column yesterday inspired me to think directly about the risk/reward questions raised by the possible pandemic.  In that column, he explained why rhetorically minimizing the public impact of the virus -- even in the way that New York's governor Andrew Cuomo reasonably minimizes it ("People not at risk should not overreact"), not in the way that Donald Trump irresponsibly minimizes it ("We have tests for everyone, and they're beautiful tests") -- might not be wise.

After all, it is almost a sine qua non of the early stages of an epidemic/pandemic for the disease to be transmitted among seemingly healthy people.  For Cuomo to say, "Hey, young people, this disease doesn't (apparently) affect you, so go live your lives," is (as Professor Dorf noted) possibly to tell young people to increase the transmission of the disease, thus ultimately dooming not just many older people but even some of those young people themselves (given that the death rate is non-zero even for the least threatened groups).

Because I live in a university town and teach at a law school, this is especially interesting to me, of course.  Although it is true that my students will interact with the outside world, it seems that the risks of continuing to live life normally at a place like the University of Florida approach something like zero (but not zero), which means that we need to worry about the consequences of overreacting.  That said, I do understand why all university administrators -- and especially those at public universities, where the interactions with politicians are most direct -- will err strongly toward (possibly excessive) caution.

I thus expect that I will very soon be ordered to teach all of my classes online, even though that will probably not be the best route forward for any number of reasons.

Again, these few paragraphs of analysis of the coronavirus sitaution were dislodged from my brain by the Dorf column to which I referred above.  For the remainder of this column, however, I want to return to my original question: Why was I not already in the thinking/planning stages of writing multiple columns about this topic?  Short answer: It was probably denial, but it was an interesting form of denial.

Tuesday, March 10, 2020

COVID-19 Part 1: The Costs and Benefits of Coronavirus "Panic"

by Michael C. Dorf

On Sunday, New York Governor Andrew Cuomo publicly pleaded with the federal government for authorization for expanded COVID-19 testing. In the course of his remarks, Cuomo sought to reassure young and healthy people about the small risk that the coronavirus poses to them: “There’s a level of fear here that is not connected to the facts,” he said. “This is not the ebola virus, this is not the SARS virus. This is a virus that we know a lot about… The dangerous aspect again, that vulnerable population.” Put differently, we might characterize Cuomo's advice to young healthy New Yorkers as "don't panic."

Is that good advice? The costs of COVID-19 panic are obvious and serious. People who are not sick hoarding hand sanitizer and masks that will not protect them but that deprive health care workers of essential supplies put others at risk. Yet some panic--in the sense of actions motivated by fear that is disproportionately large relative to individual risk--may actually be socially beneficial here.

Monday, March 09, 2020

Benefits, Burdens, and Legislative Purpose in the Louisiana Abortion Case and Beyond

by Michael C. Dorf

In Planned Parenthood v. Casey, the lead opinion of Justices O'Connor, Kennedy, and Souter said that a law imposes an undue (and thus unconstitutional) burden on abortion if the law "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." In the challenge to the Texas admitting privileges law in Whole Woman's Health (WWH) v. Hellerstedt, some advocates and commentators urged the Court to strike the law down on the ground that the Texas legislature adopted it for the purpose of making it more difficult for women to obtain abortions.

Justice Breyer's majority opinion in WWH repeatedly quoted the "purpose or effect" language, but did not invalidate the admitting-privileges law based on its abortion-restrictive purpose. However, neither did he rely on the law's effects alone. Instead, making sense of the name of the test (undue burden), Justice Breyer refined the Casey test so that it does not look only at burdens but also at benefits. A burden that might be tolerable to advance an important state interest could be deemed substantial and thus undue where the state interest is slight.

To be sure, it would be analytically clearer to say that the substantiality of the obstacles a law imposes is measured independently, the benefits are measured independently, and then the two are weighed against each other. And I read Justice Breyer's opinion as more or less saying that the Casey opinion should be read to mean something like that even though it does not expressly refer to benefits. To my mind, Breyer's understanding is both analytically sounder and more faithful to what the plurality was trying to do in Casey than the Casey formulation itself.

Where any of that will go in June Medical Services v. Russo--the Louisiana abortion case argued last week--is not at all clear. As I noted in my preview of the case, there is a chance that the Court will decide the case by changing the law of third-party standing to disallow doctors and clinics to challenge abortion regulations, even those that target them. Certainly Justice Alito seemed receptive to that line of argument.

But there is also a chance the Court will reach the merits. I am not as much of a legal realist as Prof. Segall, but I am enough of one to think that the Court's merits ruling will have much more to do with the Justices' views about abortion than about how to measure purposes, balancing tests, and the like. However, I also think that the questions raised during the oral argument about those more abstract issues can arise in other, less fraught, contexts, and so I'll say a few words about them.

Friday, March 06, 2020

Now Is An Acceptable (and Possibly the Only) Time for the Democrats to Be Suckers

[Note to readers: My most recent Verdict column, "Another Attempt to Find Optimism in American Politics," was published yesterday.  My column today here on Dorf on Law addresses a different topic, but I do hope that many of you will read the Verdict piece as well.]



by Neil H. Buchanan

The indispensable website thesaurus.com (which just helped me replace the word essential with indispensable) offers the following synonyms for the word "sucker": chump, dupe, fool, gull, patsy, sap, stooge.  In turn, the entry for "patsy" includes (among others): doormat, sitting duck, pushover, sap, schmuck, and easy mark.

Last week, The New York Times published an op-ed by Columbia Law professor Tim Wu with the wonderful title: "Quantifying Liberal Suckerdom."  The piece summarizes an interesting little study by Wu's Columbia colleague Kristen Underhill and two co-authors that attempts to measure whether and how much liberals are pushovers, saps, dupes, fools, and easy marks.

The study is of a type now popular in the academic literature that tries to extract information from an unlikely angle and then run with the results.  Here, the claim is that conservatives in Congress outright reject liberal policies whereas liberals accept conservative policies so long as there is a sunset, i.e., the law includes an expiration date.  The difference between those two approaches, apparently, is the difference between being shrewd and being a sucker.

Probably the most well known example of a law with a sunset provision is the Economic Growth And Tax Relief Reconciliation Act 2001, which (with a 2003 add-on) became known as the Bush Tax Cuts.  Similarly, the non-business reductions in the highly regressive 2017 Trump/Republican tax cut bills are sunsetted in 2025, turning a bill that was already stroking the rich to an extraordinary degree into even more of an exercise in Reverse Robin Hood politics half of a decade from now.

As someone who has been bemoaning liberals' patsy-hood for years, I admit that my attraction to Wu's article (and the study that he cites) might reek of confirmation bias.  I am dubious about the study's reasoning, however, even though I am absolutely sure that Democrats too often allow themselves to be played for dupes.

At the end of this column, I will compare what Democrats are doing with respect to the COVID-19 situation with what Republicans would be doing if the roles were reversed.  But first, it is helpful to think in some depth about political suckerdom.

Thursday, March 05, 2020

Bernie Sanders on Marijuana Legalization

by Michael C. Dorf

Throughout the caucus and primary season, Democrats have been deciding on a candidate by considering who is more likely to win the general election (and how much more likely) and choosing who would be the best President. That choice is simpler now that the race has been effectively narrowed to two contenders, but it is by no means simple.

Consider my own calculus. My policy views are heterogeneous but on average closer to those of Bernie Sanders than Joe Biden. Meanwhile, just last month I tentatively suggested that the usual framing of base mobilization (via Sanders) versus appeals to moderate swing voters (via Biden) could be wrong--that Sanders might be better positioned both to motivate base activists and to appeal to potential swing voters because, as a left-leaning populist he could better compete with Trump's right-wing populism. However, that tentative suggestion could be wrong in various ways. Sanders draws huge crowds for rallies but has not yet generated the sort of turnout bump at the polls that he would need to generate for the turnout theory to be reliable in the general; meanwhile, Biden's appeal to African American voters could be crucial in the general; pointing the other way, there is also the question of how many Sanders primary voters would stay home or vote third-party should Biden win the nomination. With so much uncertainty, I am therefore going to continue to withhold the coveted Dorf endorsement. (That's meant to be self-deprecatingly ironic, in case there was any doubt.)

My refusal to give voting advice does not mean that I'm going to have nothing to say about the Presidential election, however. From time to time, I'll take a deepish dive into something I might actually know something about. Today's topic: The proposal by Sanders to legalize marijuana nationally by executive order. Although I mostly share the underlying policy goals, some important elements of the proposal are legally dubious.

Wednesday, March 04, 2020

The Democratic Elite Supercharges the Heckler's Veto Against Bernie Sanders

by Neil H. Buchanan
Well, that was fast.  Five days ago, Joe Biden's candidacy was dead in the water and Bernie Sanders was all but assured of the nomination, with Michael Bloomberg still out there as a possible "savior" from the commie scourge that Sanders (and, to a lesser degree, Elizabeth Warren) represents.  Pete Buttigieg and Amy Klobuchar were still possible insider alternatives.

It is rare these days that this kind of rapid, chaotic change in the news is not directly caused by Donald Trump, but this one was truly the doing of the Democratic Establishment.  They succeeded in pushing Buttigieg and Klobuchar out (with inducements that we will probably never hear about), Bloomberg dropped out this morning, and and it looks like Warren will drop out very soon.  Although Sanders will surely soldier on, the party's elite has gotten its way: Joe Biden now looks to be the nominee to beat Trump "like a drum."

I am hardly the only person to notice that Biden is actually one of the weakest presidential candidates of all time.  I actually predicted (with appropriate caveats, but I was still wrong) that Biden's weaknesses were so bad -- and so obvious -- that the party's insiders would ease him out before now and coalesce behind Buttigieg or some other mushy, manipulable protector of the status quo.  It will undeniably be easy to argue that Biden is far superior to Trump, but Barack Obama's wing man is sure to give us many cringe-inducing moments between now and November 3.

OK, so that is my take on the current state of affairs, provided for future amusement (or possibly validation) when I look back over my columns in a few months or years.  My planned substantive contribution in this column, however, is to describe how the party establishment's actions resemble the heckler's veto in pushing back against Bernie Sanders's unremarkable New Deal-style policy views -- and also in pushing back against Liz Warren's attempts to improve capitalism.  It is not a pretty story.

Tuesday, March 03, 2020

To Ask the Question Presented in June Medical is to Answer it

by Michael C. Dorf

Tomorrow the Supreme Court will hear oral argument in June Medical Services LLC v. Russo. The case presents the following question: "Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt." Whole Woman's Health invalidated a Texas law requiring physicians who perform abortions to have admitting privileges at a local hospital, so unless the Constitution means something different in Louisiana from what it means in Texas, the obvious answer to that question is yes. Nonetheless, one would have to be very naive to think there is not a substantial possibility that Louisiana will prevail.

Monday, March 02, 2020

Teaching Constitutional Law in a World Where the Justices Just Make Up the Law

By Eric Segall

I am often asked by other law professors how I teach constitutional law given my hyper-critical views about the Supreme Court. I respond by saying that: 1) the subject is on the bar exam so of course I emphasize and make clear the black letter "law;" 2) the class is wonderful for helping students improve their critical thinking; 3) if you are going to practice constitutional law you need to learn how to talk the talk of formalism and legal rules; and 4) I disclose my priors to students on the first day of class so they have an idea what the course is going to be like.

Nevertheless, I understand why I get this question all the time. As Professor Christopher Sprigman recently said on Twitter, he tried teaching constitutional law but stopped "because my students were unhappy when I would point out how the Supreme Court was making it up, often incoherently. Students want to believe in what is in reality a bad discipline." Numerous other professors have complained about the same frustration to me over the years.

Professor Sprigman's charge that the Justices are just "making it up" needs to be unpacked just a bit because many Supreme Court experts likely disagree or perhaps phrase what the Justices do less insultingly. But Sprigman is exactly right. In most constitutional law cases, there is no helpful text or history and the Justices (and lower courts) spend most of their time discussing prior Supreme Court decisions (where there was also no helpful text or history).