Tuesday, August 31, 2021

New Zealand's Tragedy of Competence and Cohesion in the Coronavirus Pandemic

by Neil H. Buchanan

Note to readers: I have published two new columns this week on Verdict, which I hope that many of you will check out and possibly even find interesting:

-- "Dead Democracy Walking," published yesterday, represents a pivot point from writing about the possible death of the U.S.'s imperfect experiment in constitutional democracy and the rule of law to taking that imminent death as a given; and

-- "Statehood for D.C. Could Not Be Reversed," published this morning, demonstrates that D.C. statehood ought to be an easy call, even under the strained logic of filibuster lovers like Joe Manchin and Kyrsten Sinema, because it could not be reversed by Republicans even after they establish one-party rule.  But I also point out that ultimately it does not matter, because "Dead Democracy Walking."

I am planning to write yet another Verdict column to be published this Thursday, where I will explore the future of federalism under one-party Republican autocracy.

Here, however, I will not follow up on any of that.  Instead, I will return to yet another ongoing crisis that is both tragic and unnecessary.

Monday, August 30, 2021

Supreme Myths II: The Roberts Court Years

 By Eric Segall

My first book, Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, came out in 2012, about six years after the Roberts Court began. The thesis of the book was not that the Court is always partisan or that all the Justices are awful or that the country would be much better off if only the Court mirrored my progressive politics. The thesis of the book was that over the centuries the Supreme Court has not taken prior positive law seriously enough to justify calling the institution a court. 

It is relatively common ground that judges are not supposed to make all-things-considered decisions but rather they should at least minimally take prior law into account. My book discussed numerous areas of constitutional law since the Founding and reached this conclusion:

Because the Court functions much more like a political veto council than a court of law...the Supreme Court's power to overturn the important decisions of other governmental officials should be seriously re-evaluated. Perhaps, having an ultimate veto council is a good idea for a representative democracy whose people believe in limited government. But if so, we should be honest about how the council is structured and actually operates. It is well past time to pull back the curtain on, and then reassess, the Supreme Court of the United States.

I am not here to argue that in the almost ten years since the book was published the Court has been less a court than during the previous two centuries. But I am here to say that the last ten years strongly support the thesis of Supreme Myths. Moreover, because social media have dramatically altered the landscape of reporting on the Court, more and more people actually understand the inherently flawed nature of a governmental institution staffed by people with jobs for life who wield effectively unreviewable power.

Friday, August 27, 2021

Biden, Afghanistan, and Idealism-as-Pragmatism

by Neil H. Buchanan

Plenty has happened in the ten days since I wrote my Dorf on Law column about Afghanistan.  One happy development is that there is now a reasonably significant chorus of people who are not buying the hawkish hype that the cable shows -- and even supposedly neutral reporters -- have been hyping.  Ezra Klein's NYT piece earlier this week is a good example of this positive genre. 
I can thus happily admit that my headline-level assertion that "No One Knows Anything" is now demonstrably false.  It took some time, and there is still plenty of hawkish insanity out there.  Still, the conversation now includes at least a bit of clarity, honesty, and modesty.

Of course, plenty of bad things have happened as well, the most obvious being the terrorist attacks at Kabul's airport yesterday that killed dozens of people.  And because the victims of those attacks include thirteen Americans, this goes beyond a human tragedy and becomes yet another moment when President Biden could make a rash and ultimately tragic recalculation.

As I stipulated in my August 17 piece, I have no special knowledge or expertise about Afghanistan.  My purpose in that column was thus to point out that a reasonably sentient observer could see that the narratives emerging during the chaotic end to the U.S's 20-year military operation in that country were nonsense.  I might not know a lot, but I know BS when I smell it, and the air has been especially fetid this month, even by Washington's standards.
Here, rather than trying to step outside my lane and opine about the specifics in Afghanistan, I want to take a step back and ask what a kind of policy and political possibilities now confront Biden, Congress, and our military and national security leaders.  My conclusion, teased in the title of this piece, is that our domestic political situation now presents Biden with what amounts to a freebie, allowing him to take the idealistic position because, as a pragmatic matter, his political fate has already been sealed.  Why not do the right thing?

Thursday, August 26, 2021

The Afghanistan Withdrawal and Agent-Relative Duties

 by Michael C. Dorf

A new analysis indicates that over a quarter-million Afghans who worked with or for the United States during the last two decades remain in the country. Most of them will not be evacuated in the five days between now and the self-imposed and Taliban/ISIS-K-enforced deadline for withdrawal of all U.S. forces. We will have failed those people, with catastrophic, often fatal results. More than that, we will have wronged them by violating our agent-relative moral duties towards them.

In moral philosophy, an agent-relative duty is exactly what it sounds like: a moral duty that you owe to particular individuals because of something about your relationship with them. Such duties can be usefully contrasted with agent-neutral duties, which we owe everyone.

For example, your duty not to intentionally kill people (absent justification or excuse) is agent-neutral; you are obligated to refrain from murdering everyone. By contrast, your duty to provide food and shelter for your minor children is agent-relative. You must feed and house your own children but you have fewer duties to others. Most moral theories recognize that while it would be praiseworthy for you to provide food and shelter to strangers (whether minors or adults), doing so is supererogatory; it goes beyond the call of duty.

In the last couple of weeks, we have witnessed compelling testimonials from U.S. personnel who served in Afghanistan alongside Afghans who acted as translators or otherwise assisted the U.S. mission and are now in grave peril of reprisal from the Taliban. What makes these cases so forceful, I will suggest, is that they combine multiple strong grounds for finding agent-relative duties.

Wednesday, August 25, 2021

The Hybrid Attack on the US Capitol

by Sidney Tarrow

      When hundreds of enraged Trump supporters attacked the U.S. Capitol on January 6th, 2021, Representative Liz Cheney was approached by her Republican colleague, Jim Jordan. According to journalists Carole Leonning and Philip Booker, in their book I Alone Can Fix It (2021), Cheney reported: "While these maniacs are going through the place, I'm standing in the aisle and he [Jordan] said, 'We need to get the ladies away from the aisle. Let me help you.' I smacked his hand away and told him, 'Get away from me. You f---ing did this!'” (Lonis, 2021).

      Cheney’s accusation that Jordan “did this” was both true and false: Jordan and the Trump wing of the Republican Party were certainly complicit in the myth that the 2020 election had been stolen, which enraged the rioters on January 6th. But the attack on the Capitol that day was an insurrection by a social movement – not by a party. This was an insurrection that Donald Trump had incited but ultimately could not control.

      In this post, I will argue that the January 6th insurrection was the product of both a collision and a collusion  between  a political party and a social movement (Tarrow 2021, ch. 8). Whatever Trump’s intentions in inciting the mob to “walk down to the Capitol,” this was a politician’s maneuver. But the insurrection was the action of a movement – albeit one that he had created.

Tuesday, August 24, 2021

It took me four days to hitchhike from Saginaw

 by Michael C. Dorf

James Carville famously described the politics of Pennsylvania as Philadelphia and Pittsburgh with Alabama in between. This trope fairly describes much of the United States. Wisconsin is Milwaukee and Madison, with Alabama in between. Ohio is Columbus, Cleveland, Cincinnati, and Toledo with Alabama in between. New York is New York City (minus Staten Island) and the upstate small cities of Albany, Buffalo, Rochester, and Syracuse, with Alabama in between. One might also add college towns to round out the description—as I can attest from personal experience: whenever I venture more than five miles outside Ithaca, I see multiple Trump yard signs—some left from 2020, others looking to 2024. Indeed, as Professor Buchanan observed when I made the point to him in an email last week, Carville's aphorism even describes Alabama itself, which is Montgomery and Birmingham, with Alabama in between.

Carville's observation can also be seen in those maps that Donald Trump liked to show to visitors, with counties colored red or blue based on how they voted in the 2016 Presidential election. The map was overwhelmingly red, even though Trump lost the popular vote, because the population density of the Rebublican-majority mostly rural counties is so much smaller than the population density of the Democratic-majority mostly urban and suburban counties.

The geographic distribution of voters and their political preferences shapes our politics. A combination of voluntary sorting, district-based representation in state legislatures and the House of Representatives, much more aggressive partisan gerrymandering by Republicans than by Democrats, and the Supreme Court’s acquiescence in (indeed, enthusiastic support for) the measures by state-level Republicans to combat small-d democracy bode ill for the American experiment.

The foregoing factors account for much of the pessimism expressed over the last several years by both Professor Buchanan and me, at least in the short to medium term. Longer-term predictions are much more difficult to make. The U.S. didn’t have anything approaching genuine democracy until the Voting Rights Act of 1965. The fact that we got some version of democracy, at least for a few decades, and that democracy has periodically emerged in other formerly non-democratic countries at various points in the last century, show that it is possible for democracy to emerge or re-emerge out of undemocratic regimes. That’s in the long run, however, and, well, I’m a Keynesian.

In any event, my main point for today is not simply more political doom and gloom. Mostly I want to register an observation about the psychological impact of the contemporary geographic distribution of American partisanship, in the hope of providing a partial explanation for the acceptance of the Big Lie by so many Republicans. I'll meander my way to the point.

Monday, August 23, 2021

From Slavery to Segregation to Institutional Racism: How the Story is Passed

 By Eric Segall

I grew up forty-five minutes from Manhattan and worked for two summers as a law firm messenger in New York City. I also have studied, taught, and written about race my entire career. Yet, before reading Clint Smith's excellent new book How the Word is Passed: A Reckoning with the History of Slavery Across America, I knew little about New York's substantial role in the slave trade (which I discuss towards the end of this post). My purpose here is not so much to review Smith's pathbreaking book but to make a plea for everyone to read it. 

In How the Word is Passed, Smith visits numerous places where slavery and segregation thrived and through fascinating stories, interviews, and reflections demonstrates with beautiful prose (the author is also a poet) how our present institutional racism is derived from our racist past. The book made me gasp out loud numerous times.

Friday, August 20, 2021

Predictions of the Death of Democracy, Ten Years Ago (a Verdict classic)

by Neil H. Buchanan

To readers: Yesterday brought yet another example of the radicalization of Donald Trump's anti-democratic supporters -- followed by another bonkers response from one of the Trumpiest House members, which was in turn followed by the sound of crickets from Republican House leaders.
In light of this now-depressing new normal, for today's classic column, I was going to reprint the column in which I first used the phrase "the end of constitutional democracy" to describe the existential threat of Trumpism:"Is This the Beginning of the End of Constitutional Democracy in the U.S.?Verdict published that column ran on June 2, 2016, and I added a few more thoughts in a Dorf on Law column the next day.

Although those columns still, in my completely unbiased opinion, stand up rather well more than five years later, I wanted to go back a bit further to find when I started writing about pre-Trumpian threats to the rule of law in the U.S., even though I was not yet describing them as possibly causing "the end of constitutional democracy."  Although there are even earlier pieces that might qualify, I chose the column below from nearly ten years ago (which I originally published when we were still using very long, non-tweetable headlines).
I chose that column today in part because it relies on a theory that I no longer believe to be especially important or descriptive of our reality.  Specifically, at the end of the column I warn darkly that American democracy could soon be under threat, but I attribute that to the growth of economic inequality.  This is, in other words, the now-superseded idea that "we'll see something fascistic arising in the U.S. when the little people can tolerate no more and turn to a strongman in their frustration and rage."
As we now know, however, that theory does not provide a plausible explanation of Trump's rise, given that the little people are generally not the ones who are his most extreme supporters.  Notwithstanding Republicans' absurd efforts to rebrand themselves as the "workers' party," their policy preferences are still solidly anti-worker (and anti-consumer, and anti-environment, and anti- ...).
So we can file the column below under the category of naive economic essentialism.  To our collective chagrin, the world has learned that racism is stronger than economic self-interest.  Enjoy?

Thursday, August 19, 2021

The Giving Tree, Eshet Chayil, and the Host/Parasite Relationship

By Sherry F. Colb

When my daughters were little, one of the books that I read to them before bedtime was The Giving Tree, by Shel Silverstein. The story involves a boy who, in today’s parlance, apparently suffered from a failure to launch. He seemed unable to go out into the world and get himself food or shelter. The Giving Tree always had something to offer the boy, and she (I am pretty confident that the tree is a she) was happy to do it. She gave him fruit, wood for building a home, and ultimately a place to rest when he had destroyed all but a remaining stump. I always found the story very sad, but I somehow missed the fact that the story—however well written and creative—is quite ugly and offensive. If I read it to children today, it would be as an example of how misogyny finds its way into “classic” writings.

Wednesday, August 18, 2021

Originalism Diluted

 By Eric Segall

In a forthcoming article in the Harvard Law Review titled “Originalism Standard and Procedure,” Professor Stephen Sachs continues his Arthurian quest to convince (not sure whom, academics, judges, philosophers, everyone) that originalism is indeed our law. This mission, which he and his frequent writing partner Professor Will Baude, have been on for a while, has generated numerous essays, articles, and blog posts sometimes referred to as the “positivist turn,” or “originalism is our law” originalism. In his latest Article, Sachs argues that originalism is a standard, not a decision procedure. In more common terms, he tells us that originalism is a “destination, not a route.”

 Sachs says the point of borrowing the philosophical distinction between a “standard of rightness” and a “decision procedure” is to demonstrate, not that originalism is true, but that many arguments against originalism are wrongheaded. In his own words, “the uncertainty of our legal past, or the inconsistent behavior of originalism in office, might not count against the theory [of originalism] itself." 

That originalism is difficult, or that reasonable people might disagree about what it shows in a case or series of cases, or that it is easily manipulated and/or evaded, does not disprove the theory because, according to Sachs, we often have standards of correct behavior that are hard to get right but which remain important, worthy, and highly desirable. For example, Sachs points to consequentialists, like retired Judge Richard Posner, who argue that judicial decisions should lead to the best consequences while admitting that how to figure out what that means is hard and usually contestable. So too with originalism. Even if we cannot all get there together, Sachs argues, having the destination is a good thing, and fights along the way are inevitable because humans (including judge and philosophers) are fallible.

When combined with his previous work, Professor Sachs suggests that “our law is the founders’ law until legally changed,” that originalism is at least a formidable contender for being the “founders’ law,” and that whether or not judges are or even could be faithful originalism is irrelevant to what our law is-which is, indeed, originalism.

Professor Sachs’s thesis is unpersuasive for a strange reason, given that he self-describes his work as positivist. The reality, on the ground, is that originalism was never our law at the Founding (just a small part of it), and that originalism (without strong judicial deference) as a final landing place is a road to nowhere but the imposition of personal value judgments by judges who hide behind misleading pointers to disputed historical evidence. It is unclear if Sachs even disagrees with all this because he says the "effectiveness" of originalism as a decision-procedure "is besides the point." 

Tuesday, August 17, 2021

Afghanistan Briefly Returns to the Public Consciousness, and No One Knows Anything

by Neil H. Buchanan

Suddenly, everyone needs to talk about Afghanistan.  TV and print pundits who clearly know nothing about what is happening in that country -- including the supposedly sober-minded journalists who front straight news desks -- are all opining about what went wrong.  I am not saying that everyone is repeating the same stupid things, or even that everyone's take has been stupid, but there is certainly a lot of uninformed BS flying through the virtual air right now.

Here at Dorf on Law, Afghanistan has hardly been a focus of our concern over the years.  Although we published ten or twelve columns about that country in some of the years in the 2007 through 2011 period, we (like almost everyone else) have said next to nothing at all about Afghanistan since then, even as our country's longest war dragged into the third decade of this millennium.  Our only mention of Afghanistan thus far in 2021 was in a column that I wrote in April discussing bothsidesism, where one of my examples mentioned that Washington Post columnist Max Boot had criticized Joe Biden's Afghanistan policy.  Our one column to mention Afghanistan in all of 2020 and our lone such column in 2019 were not at all devoted to anything remotely resembling foreign policy analysis, simply name-checking Afghanistan in the course of making unrelated arguments.

And this is appropriate, given that our writings follow the public conversation (broadly speaking), which has similarly ignored Afghanistan -- and especially given that neither Professor Dorf nor I happen to have any directly relevant expertise.  Now that it has become all but required for everyone to have a reaction to what is happening, however, I am going to do my best to stay in my lane while calling out others who clearly know even less than I do about the Graveyard of Empires.  Once this kind of thing becomes a public pile-on, it is unsurprising that there is a lot of obviously wrong nonsense out there.
In no particular order:

Monday, August 16, 2021

The Justice Scalia Mythology that Still Haunts our Politics and our Law

 By Eric Segall

Justice Antonin Scalia passed away in 2016 but his legacy and the myths surrounding his jurisprudence still severely impact our politics and our law. Not long after his death, George Mason University received a large sum of money from private donors (including the Koch Brothers) to change the law school’s name to the Antonin Scalia Law School. Recently, Harvard Law School announced that it filled its outside-funded Antonin Scalia Professor of Law position. While running for President, Donald Trump repeatedly used the name Antonin Scalia to signify the kinds of judges he would appoint. There is even a play written about Scalia which was performed in the shadow of the highest Court in the land.

These lavish testaments to the late Justice are deeply insulting to women, people of color, LGBTQ folks, and non-Christians, as well as dangerous perpetuations of the fiction that Scalia was a Justice worth honoring. What Scalia stood for the most was the privileging as a matter of law of antiquated and unjust legal traditions, favoring white males over outsider groups, and allowing the government to treat the religious over the secular under the establishment clause. Mountains of evidence for these claims can be found in Scalia’s written opinions, his questions during oral arguments, and his off-the-court statements.

Friday, August 13, 2021

Freedom, Plague-Spreaders, and Holmes's Bad Man

by Neil H. Buchanan
The long-overdue backlash against people who elevate their confused notions of personal liberty above the need to fight a catastrophic pandemic continues to intensify, with good reason.  My two most recent columns (here and here) explored the maddening recklessness now personified by the governors of Florida and Texas.
Especially in the latter column, I argued that this is not in fact a matter of balancing individual freedom against social harms, because the concepts of force, choice, and all of the other buzzwords that are being endlessly repeated by the antisocial right are deeply incoherent.

There was a very good exchange on the comments board for that second column, with an especially important point offered by Professor Dorf, suggesting that I might have overstated my claim in a way that could seem to endorse the antisocial nihilism of Oliver Wendell Holmes's "bad man."  I will return to that important discussion later in this column, but I should begin with a disclosure of self-interest.

Thursday, August 12, 2021

How to Choose an Understudy: Reflections on Soon-to-be-Governor Kathy Hochul

 by Michael C. Dorf

New York Governor Andrew Cuomo's resignation is not yet effective. In announcing it, Cuomo said it would take effect in two weeks. Why not immediately? It's not entirely clear. Are there official papers Cuomo wants to pack up (or shred!)? The official explanation is that, given the pandemic, the additional time is needed to ensure a smooth transition. Maybe. The best explanation might be prosaic. Apparently Cuomo has no home other than the Governor's mansion in Albany. Maybe he needs the time to find an apartment.

In any event, pretty soon Kathy Hochul, currently the Lieutenant Governor, will become Governor. That change raises a number of interesting questions about the costs and benefits of having an official understudy (whether it is the lieutenant governor of a state or the national Vice President) who is closely or distantly connected to the chief executive. In this essay, I'll discuss state and national offices somewhat interchangeably, even though I realize that there may be subtle distinctions.

Wednesday, August 11, 2021

Mandates, Force, Choice, and Meaningless Political Theater

by Neil H. Buchanan

Years ago, a progressive economist (yes, they exist) was presenting a working paper to a full house at an academic conference.  She was discussing poverty, and her comments returned again and again to the claim that poor people were being forced to take dangerous and onerous jobs.  It was a sensible and thoughtful presentation, but toward the end of her remarks, an angry male voice boomed from the back of the room: "Who was it, exactly, that held a gun to their heads?"

This story (which I have surely related before on this blog, but it is still a useful teachable moment) has always struck me as the perfect example of how orthodox economists' notion of force and choice is completely lacking in nuance.  You could have chosen to not work, so you had a choice.  Freedom! 
Interestingly, however, the politicians who normally rely on that type of economic thinking have suddenly become convinced that the notion of choice is the exact opposite: If you are faced with any limitations or costs at all for doing whatever the hell you want to do, then you have lost all of your freedom.  This, of course, only applies to the people whom the Ted Cruzes of the world care about, because everyone else loses some options when certain people are given free rein.

Yes, I am talking about vaccine "requirements," mask "mandates," and all the rest of the things that Republicans are now vilifying, which has led them to oppose all public health measures that might "force" someone to do something that they do not feel like doing.  None of it makes sense, but the nonsense goes deeper than it might seem.
To be clear, I am fully aware that I am arguing against people who are not making a genuine argument and who are operating in bad faith.  Even so, it is worth taking a deeper look at the underlying presumptions that motivate their antisocial behavior.

Tuesday, August 10, 2021

When Bad Laws Make Bad Constitutional Law: Arkansas Anti-Mask Mandate Edition

by Michael C. Dorf

Hard cases make bad law. So goes an old adage. A hard case tests commitments to legal rules and standards, leading judges to bend or distort those rules and standards, thereby rendering them less useful for the mine run of what should be easy cases.

Today I want to propose and explore a corollary: Some bad laws make bad constitutional law. I'll elaborate with respect to the recent ruling by Judge Fox issuing a preliminary injunction against the enforcement of an Arkansas law (Act 1002) that forbids state or local government actors--including school districts--from mandating face masks, shields, or coverings. When the Arkansas legislature enacted Act 1002 in April of this year, COVID-19 cases were declining and there was some hope that mask mandates for the current pandemic would not be needed again. The law was nonetheless rash, given the possibility of a new disease outbreak or, as we have experienced, the spread of a more contagious variant. The legislature's recent failure to repeal the mask mandate ban, despite the wishes of Governor Asa Hutchinson (who now regrets and wishes to remedy his initial decision to sign Act 1002), is murderous stupidity.

Nonetheless, not all stupid laws are unconstitutional. Justice Scalia used to sometimes say that he wished he had a stamp he could use to label some of the laws he saw challenged "stupid but constitutional." I disagreed with Justice Scalia about exactly which laws would earn that stamp, but I agreed and still agree with the basic idea: A law can be stupid, even criminally so, without being unconstitutional. I fear that might be true of Act 1002. Judge Fox's very brief preliminary injunction opinion does not persuade me otherwise.

Monday, August 09, 2021

What's Andrew Cuomo Thinking?

 by Michael C. Dorf

The report commissioned by the NYS Attorney General into allegations of sexual harassment by Governor Andrew Cuomo is devastating. Thus far, however, Cuomo has resisted widespread calls for his resignation, even though they are coming from former political allies. What is Cuomo thinking? Here I'll explore some hypotheses, but I should say up front that none of them makes a whole lot of sense to me.

Friday, August 06, 2021

Founding-Era Common Law's Relevance to Original Meaning

 by Michael C. Dorf

As advertised here on the blog a week ago, yesterday I participated in the Practicing Law Institute full-day conference reviewing the last Supreme Court Term. It was the 22nd annual conference; as Dean Erwin Chemerinsky noted in his opening remarks, I have presented my views at each and every such conference. I quipped that this announcement made me feel old, to which Prof Burt Neuborne, also a participant from the beginning, responded, that it made him actually be old, which, I suppose, is true of me as well. It was, as always, a fruitful day. Interested readers--especially those in need of CLE credit--can view the recorded version here. (It's expensive, even though we panelists aren't paid, because PLI has a lot of overhead to manage to make these programs available.)

Anyway, I'd like to use today's essay to discuss an issue that Dean Chemerinsky raised a couple of times during the day. He noted that in several of the Court's cases last Term, either a majority or separate opinion placed a great deal of weight on the state of the common law at the Founding in order to ascertain the current operation of some constitutional provision or doctrine.

For example, in Uzuegbunam v. Preczewski, Justice Thomas, writing for a nearly unanimous Court, looked to Founding-era common law to conclude that the availability of nominal damages suffices to establish standing under Article III. Conversely, in Transunion v. Ramirez, the Court, per Justice Kavanaugh, found that the plaintiffs lacked standing because they had failed to identify "a close historical or common-law analogue for their asserted injury." Justice Thomas (joined by the three Democratic appointees) dissented in Transunion, objecting less to the majority's reliance on Founding-era understandings of the scope of judicial power than to its characterization of them.

Those two cases and others we discussed during the course of the day led Dean Chemerinsky to observe that the increasingly prominent place given to Founding-era common law in the Court's jurisprudence shows the increasing importance of originalism on a conservative Court. I agree broadly, but I think the details worth examining.

Thursday, August 05, 2021

Rejection of Vaccines and Hostility to Vegans

by Neil H. Buchanan
Now that the renewed surge in COVID cases has put the health-care systems in many of the country's less-vaccinated areas (aka TrumpLand) into serious danger of collapse, and with health care workers walking away from their jobs in surprising numbers (leading to staffing shortages in hospitals nationwide), there is a growing sense that it is time to stop coddling the "vaccine hesitant" Americans who are directly causing this disaster.

It would take hours to collect citations to all of the times just in the last two weeks when politicians and pundits have said, in one way or another: "This has to stop.  The vaccine refusers are making life for the rest of us worse, endangering not only themselves but also damaging the economy in which the rest of us would like to re-engage.  No more free riding!"
Even the governor of uber-Trumpy Alabama castigated the people who refuse to be vaccinated, saying that "it’s time to start blaming the unvaccinated folks, not the regular folks. It’s the unvaccinated folks that are letting us down."  Yes, she did indeed say that people who are willing to get the vaccine are "regular folks," and the rest are thus deviant -- even though her state's vaccination rate among those 12 years of age or older is under forty percent.

To which I can only say: Finally!  It is long past time to stop treating vaccine refusal as something to which we need to be sensitive -- other than among people with genuine health-related reasons not to be vaccinated, who are the very reason that herd immunity is so important.  As someone who long ago noticed just how snowflaky 21st Century American conservatives have become, I find it hopeful that more and more people are calling them on their selfish "but I don't wanna" irresponsibility.

The question is, however, how to stop being passive and begin to take actions that will cause such people to do what they have thus far refused to do.  Interestingly, the answers can be explored through the lens of another difficult issue in human behavior: getting people to stop (or at least reduce) their consumption of animal products.  How does our experience with one type of antisocial behavior inform another type of antisocial behavior?

Wednesday, August 04, 2021

Back to Court; Back to School

 by Michael C. Dorf

Building on a SCOTUSblog symposium, my latest Verdict column reflects on the lessons that the Supreme Court might glean from its telephonic oral arguments when it resumes in-person oral arguments. As I note in the column, the recent surge in COVID infections, hospitalizations, and deaths due to the Delta variant and the relaxation of masking and social distancing creates some uncertainty about when in-person SCOTUS arguments will resume, but one hopes the answer is not never.

Likewise for classes at primary, secondary, and post-secondary institutions, including the one at which I teach. Cornell is requiring full vaccination of everyone on-campus, but given the potential for breakthrough infections and the vulnerability of the immunocompromised, I am somewhat uncertain about whether some or all of my students will be on Zoom for some period in the coming semester, which begins in less than three weeks. Surely teachers and administrators at kindergartens, day care centers, and elementary schools with under-12 and thus unvaccinated populations are scrambling even more--their scrambles made worse in places like Florida, in which the Governor appears to be a wholly-owned-subsidiary of the coronavirus (although, as a resident of NYS, I can't exactly throw stones about any other state's governor.) 

For now, in a forward-looking spirit, I want to offer a short reflection on what I as a teacher learned during the pandemic, in the same spirit as my column. In the column, I expressly analogize SCOTUS oral arguments to teaching in various ways. Here I'll focus directly on teaching.

Tuesday, August 03, 2021

Economic Theory Shows that People Will Make Choices that Worsen the Pandemic (a Verdict classic)

Note to readers: The column below was first published on Verdict almost exactly a year ago, on August 6, 2020.  I am republishing it today because various Republicans (especially the governors of Texas and Florida) are cynically relying on simplistic economic arguments to justify not requiring masks, vaccinations, or anything else, even as the Delta variant devastates those states (and others).  In the column, I explain why even the most basic economic theory shows that "the invisible hand" of aggregated individual choice will most definitely not lead to the best public health outcome in a pandemic. 
by Neil H. Buchanan

As I write these words, the Trump White House and Republicans in the Senate are holding America hostage to an economic orthodoxy that they simultaneously misunderstand and misapply. Tens of millions of people are anxiously waiting to find out whether they will be able to pay for food and shelter next week and next month, but Republicans have decided to punish them lest Americans become lazy slobs.

I wish I were exaggerating, but I most definitely am not. Notwithstanding the worst economic upheaval in ninety years, the Republicans to a man (and the very occasional woman) have stuck to their guns (pun intended) and are doing everything they can to insult their constituents and make the economy even worse. This is a result of economic illiteracy, and it is not only unconscionable but amounts to political malpractice.

Monday, August 02, 2021

Justice Thomas in his Own Words

 By Eric Segall

Note to readers: Continuing our brief mid-summer break here on Dorf on Law, we offer this classic column from October 2018 discussing our most Senior Supreme Court Justice Clarence Thomas. Since I wrote this post, Thomas has called on the Court to reconsider some of its most important cases, such as New York Times v. Sullivan and Gideon v. Wainwright. Here he is in his own words discussing other major constitutional law issues, race, and how Justices should decide cases, among other topics--Eric Segall

Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since.

Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.”

Dozens of Thomas’s law clerks have become federal judges, and his originalist statements about constitutional interpretation have been largely adopted by the Federalist Society, a conservative non-profit that is now assisting President Trump in his selection of Supreme Court Justices and lower court judges.

No one can deny Justice Thomas’ influence on our law and politics since he became a Justice more than 25 years ago. Yet, there are numerous aspects of his career that are troubling and mystifying. Here is Justice Thomas in his own words and votes.