Tuesday, February 28, 2023

The Attack on Higher Education Heats up from Simmer toward Boil

by Neil H. Buchanan

Pending legislation in Florida would, if enacted, make it illegal to teach Economics in the state's universities.  It is not being described that way, of course, but what else could one conclude about a bill that prohibits the state's colleges and universities from offering general education courses "with a curriculum based on unproven, theoretical or exploratory content"?

If that sounds like snark, it is.  It is also true even on its own terms, however, because even the most true-believer orthodox economists -- the ones who insist that theirs is the only true science outside of the STEM curriculum, making the field in which I earned most of my advanced degrees "the queen of the social sciences" -- would certainly embrace the idea that economics as they understand it is both theoretical and exploratory.  Many of the rest of us know that it is also unproven (and unprovable), but even setting that aside, the people who glory in the idea that "theory" is the most exalted of the sub-fields of economics -- intellectually akin to theoretical physics -- and that they are "exploring" the contours of modern economies, have habitually violated two of the three prohibited items on a list that is connected with an "or."  Oops.

Oh, and speaking of theoretical physics ...  Gone from Florida's GenEd courses too, right?

No one imagines, of course, that this is where things will go.  The new legislation -- HB 999, which might more accurately be called HB 666 -- is all about extending and intensifying the attacks on academic freedom and making Florida's universities teach only content that is approved by political appointees of the Republican governor.

So although it can be fun to point to the clumsy wording and the illogic behind such legislation, this needs to be taken seriously.  This column will begin to explain what is happening, and what might happen next.  Unfortunately, it will almost surely be necessary to write many more such columns.

Monday, February 27, 2023

It's (Long Past) Time to End Pretext Stops

 by Tracey Maclin

In America, police targeting blacks for arbitrary and disproportionate searches and seizures is a tradition as old as the nation itself. Today, pretextual traffic stops are routinely used against black drivers, and, as in the case of Tyre Nichols, are sometimes fatal. Nichols was stopped by a unit of the Memphis Police Department, known as SCORPION – the Street Crimes Operation to Restore Peace in Our Neighborhoods. Officers in this unit were assigned to crime hot spots in Memphis and utilized pretext stops to investigate motorists and their passengers.

American law enforcement officials should abolish pretextual traffic stops immediately. Doing so would save the lives of future victims and end a practice that has haunted black motorists for decades.

Friday, February 24, 2023

Freedom from Fear

by Neil H. Buchanan

President Franklin Delano Roosevelt's "Four Freedoms Speech," which was in fact his 1941 State of the Union address, identified two ideas drawn directly from the nation's founding documents -- freedom of speech and freedom of worship -- along with two that are not as familiar and less often discussed -- freedom from want and freedom from fear.

FDR spoke those words nearly a year before the attack on Pearl Harbor but well after the Axis powers had launched what became World War II, so he understandably focused on the fear of the aggression that might come from foreign military powers: "The fourth is freedom from fear, which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor—anywhere in the world."  The four freedoms became essential components of the Universal Declaration of Human Rights, adopted by the UN General Assembly a bit less than eight years later.

Here, I want to talk about the freedom from fear, but to translate it back into domestic terms.  Specifically, I want to discuss why it is so important to make people in this country safe from the epidemic of gun violence that has overwhelmed the US, and to explain why this is a much more fundamental freedom than the "liberty" that people who oppose any regulation of guns talk about.

The short version of the story is that there is a straightforward way to understand freedom that would protect people by attempting to bring about, in Roosevelt's words, a domestic "reduction of armaments to such a point and in such a thorough fashion that no [malevolent actor] will be in a position to commit an act of physical aggression against any neighbor."  Sound radical?  If so, it is only because we have stopped thinking about how much the fear of being gunned down -- and, far too often, the reality of wholesale death -- impinges on people's freedom.

Thursday, February 23, 2023

Pending Congressional Revision of Section 230, Courts Should Treat it Like the Sherman Act

by Michael C. Dorf

In 2021, a panel of the U.S. Court of Appeals for the Ninth Circuit construed Section 230 of the Communications Decency Act mostly to shield major internet companies from civil liability to the families of victims of ISIS murders. The plaintiffs alleged that the algorithms of Facebook, YouTube, and Twitter promoted ISIS content, thus rendering them liable under the civil liability provision of the Anti-Terrorism Act (ATA). On Tuesday and yesterday of this week, the Supreme Court heard oral arguments in the two cases that seek reversal of the Ninth Circuit decision.

Why two cases? Because the Ninth Circuit decision reached a split decision.  It approved one district court's determination that Section 230 provides a shield but reversed another district court's dismissal of the complaint on the ground that it failed to state an ATA claim. Accordingly, in Tuesday's argument in Gonzalez v. Google, the plaintiffs appealed, arguing that Section 230 should not be construed to shield platforms whose algorithms "decide" to display ISIS (and similar) content. In yesterday's argument in Twitter v. Taamneh, the Court heard Twitter's appeal of the portion of the Ninth Circuit's decision that found that the plaintiff had stated a claim under the ATA.

As a shorthand, think of the Twitter case as involving the construction of the ATA, while Gonzalez involves Section 230. To my mind, Gonzalez is the more important case because it is possible for the plaintiff to prevail in SCOTUS in Twitter but still lose the case on remand on the basis of the Section 230 shield. Gonzalez is also the more important case in that Section 230 provides a cross-cutting defense against all sorts of liability, not just liability under the ATA.

In the balance of today's essay, I'll offer an observation about the Gonzales oral argument to tee up a pitch for the proposition that titles the essay.

Wednesday, February 22, 2023

Professor Fallon on Selective Originalism and Precedent

 By Eric Segall

Professor Richard Fallon of Harvard Law School is one of our most prominent and productive constitutional law scholars. He brings to the table a strong liberalism that makes him a forceful critic of the current conservative supreme court. His most recent article, "Selective Originalism and Judicial Role Morality," targets the Justices' selective use of originalism in constitutional cases and argues that, even if the justices used originalism consistently, they would still need some theory, steeped in morality and other concerns, for when to reverse what the justices deem to be erroneous non-originalist precedent. How even sincere originalists should blend originalism with non-originalist precedent is under-theorized, although a few originalist professors are beginning to try and articulate some criteria and standards. The Court, however, is nowhere close to having such as theory, as Fallon emphasizes.

I want to strongly encourage people to read this excellent article by one of our leading constitutional theorists. To effectuate that goal, I provide below a few ideas and conclusions from the article some of which readers of this blog will recognize as reaffirmations of what Mike and I have written about over the years. But there is also much in this article that treads new ground. Moreover, Fallon supports his critiques and arguments with such clarity, depth, and persuasion that originalist judges, academics, and lawyers will have a difficult time overcoming his arguments.

Tuesday, February 21, 2023

The US Could Do Much Better for its Citizens, Starting with Keeping them from Being Shot

by Neil H. Buchanan

It was only five days ago that the news broke of the shooting at Michigan State, in which 3 students died immediately and 5 others were seriously injured.  Today, that story is completely missing from the news sources that I monitor.  It is old news, and by the standards of the US, that incident is sadly (but frankly) not especially notable.

As frequent readers of Dorf on Law know, my academic and professional commitments have changed in the last decade.  In particular since I accepted a position at the University of Florida's Levin College of law four years ago, my work has called on me to do a great deal of foreign travel.  This involves the usual academic trips to attend conferences for a few days, but it also includes spending weeks or months at a time as a visiting scholar at foreign universities.  I am on sabbatical this semester, and I chose to spend part of the time living in Amsterdam and doing my research independently, before resuming my standard pattern for the next two months, in this case by visiting universities in New Zealand and Australia.

When I am on these trips, there is a constant stream of news from home about mass shootings, many of them at colleges and universities.  Unsurprisingly, I sit up and take notice.  Until I followed up on the Michigan State story to write this column, I had not known that the shooting happened while a class was in session, with the professor seeing a masked gunman walk into the lecture hall and open fire on his students.  I have had precisely that nightmare vision when thinking about the trend of violence in my country.  Coldblooded killing is always tragic, but there is no denying that we take special notice when it feels most salient, as if it could be us.

What do I, as an American spending long stretches of time abroad, take away from all of this -- not only in this most troubling trend of American exceptionalism regarding off-the-charts gun deaths, but more generally regarding life in the US as opposed to life in its peer countries?

Monday, February 20, 2023

Time to Retire Presidents' Day?

 by Michael C. Dorf

Today is Presidents' Day--or, as we say here at Cornell Law School, Monday February 20, which we treat as no different from any other typical Monday during the academic year. In today's brief essay, I'll offer two reasons to abandon Presidents' Day.

(1) There's something more than a little problematic about honoring George Washington, whose Mt. Vernon estate and thus his livelihood did, after all, rest on the enslavement of hundreds of people, most of whom were not in fact emancipated after his death. Needless to say, stripping Washington of the honors our national culture affords him is not going to happen any time soon. There are obvious practical obstacles, like renaming the capital district, the Washington Memorial, Washington state, and much more.

There is also a range of reasonable views about whether and how to honor people for their honorable accomplishments despite the evil they also perpetrated. One might conclude that honoring the likes of Robert E. Lee because of his efforts on behalf of the Confederacy is substantially different from honoring Washington despite his role as an enslaver. Even so, while it is thus unlikely that we will start de-Washingtonizing America generally, we might think that it's not necessary to treat his birthday as a national holiday, especially one that comes during Black History Month.

Ah, but what about Abraham Lincoln? One can rightly point out that Lincoln's moniker "The Great Emancipator" is unearned, given that the Emancipation Proclamation did not even purport to emancipate anybody in the slave states that were loyal to the Union. And as illustrated by the recent criticism of sports reporter Chris Berman over his odd seeming crediting of Lincoln for the fact that the most recent Superbowl featured two Black quarterbacks, many people are appropriately dubious about holding Lincoln up as some sort of civil rights hero or great white savior. That's fair enough and reason not to celebrate Lincoln for ending slavery (because he didn't). Even so, he could be celebrated for preserving the Union. So a national holiday for Lincoln's birthday could be justified on that ground, I suppose.

Friday, February 17, 2023

Open the Pod Bay Doors, Hal

by Michael C. Dorf

Continuing my recent blurring of the lines between a law blog and the revival of my childhood interest in science fiction that I indulged by my discussion of extraterrestrials on Tuesday (and my more actual-science-based Verdict column on Wednesday), today I'll talk about artificial intelligence. My point of departure is a story in yesterday's NY Times and an accompanying fascinating and deeply disturbing transcript of a conversation between Times reporter Kevin Roose and the new chatbot that Microsoft is rolling out as part of its relaunch of its search engine Bing.

After providing some background info, I'll tackle a couple of questions about the relation between artificial intelligence and sentience. As I'll explain, AI that can mimic sentience without actually achieving it can nonetheless be extremely dangerous.

Thursday, February 16, 2023

Republican Fear-Mongering on Social Security Is Nothing New

by Neil H. Buchanan

The political news continues to be favorable for President Biden and Democrats, as Republicans continue to flail in response to his calling them out on their longstanding (and that means longstanding) attacks on Social Security and Medicare.  In his State of the Union address, Biden specifically criticized the plan published by Florida Senator Rick Scott -- who, we should not forget, was once forced to resign as CEO of a company that was convicted of 14 felony counts of defrauding Medicare, in what was at the time the largest Medicare fraud in history -- but of course it has not been difficult to find examples of Republicans saying things that they are now frantically trying to explain away.

As I discussed in my column yesterday, one prominent example of this is Utah Senator Mike Lee, who explicitly and directly stated in a speech in 2010 that he would "pull [Social Security] up by the roots and get rid of it."  This was not a momentary lapse of reason, because Lee was the surprise nominee when his state's Republican nominating convention that year turned against incumbent Senator Bob Bennett for having had the nerve to vote in favor of saving the global financial system from a complete meltdown (thus helping to prevent the Great Recession from becoming the Second Great Depression).  Lee was one of the original wild-eyed Tea Party darlings.

Lee, of course, is now saying that his remarks were taken "out of context."  As far as I can tell, however, that merely means that he said those words in a context in which he would politically benefit from them, whereas now he would be politically harmed by them, so he wants to change the subject.  It is similar to the time (also in 2010) when Kentucky's Rand Paul went on Rachel Maddow's show and spent almost the entire 20-minute interview arguing that the "public accommodations" provision (Title II) of the Civil Rights Act of 1964 is a violation of people's freedom.  When that position became politically inconvenient, Paul's defenders claimed that Maddow had "ambushed him."  Whatever else one might say about her, Maddow is as far from an ambush journalist as one can get.

The point is that Republicans hate it when they say things that they know are going to go over well with their target audience but are suddenly confronted with the unpopularity of their insular views.  Mitt Romney's infamously disparaging comments in 2012 about the poors -- who in Romney's telling “believe that they are victims,” have an undeserved belief “that they are entitled to health care, to food, to housing, to you name it,” and can never be convinced to take “personal responsibility and care for their lives” -- were delivered to a private audience of appreciative wealthy donors.  When the recording of his remarks was released publicly, it did not go well for Romney.

On Social Security, it is especially easy to find Republicans saying things that they now would like to bury.  Here, however, I want to talk about the less explosive kinds of comments that Republicans make that nonetheless show how willing they are to try to distort the public's understanding.  Not Lee-style "by the roots" stuff, but in their own way even more of a problem.  If you can convince people that the system is already doomed, can you also convince them to let you destroy it preemptively?  Republicans certainly seem to think so.

Wednesday, February 15, 2023

Even Now, the Attacks on Social Security and Medicare Will Not Stop

by Neil H. Buchanan

As political strategies go, President Biden's attack last week on the Republicans who have been attacking Social Security and Medicare worked brilliantly -- most likely beyond what anyone in the White House had planned or even dared to hope.  My guess is that the Biden team, as they thought through his State of the Union address and what to highlight,  thought (rightly) that they could position themselves in a favorable political light by pointing out that various Republicans have been very vocal over the years in trying to cut, privatize, or simply eliminate those two wildly popular government programs.

Did they expect the political gift that Republicans offered in response?  I honestly doubt it, but who cares?  The Republican caucus, rather than doing what most people would have anticipated them doing, which is to go on the talk shows and try to say that they have always been at war with Eastasia loved Social Security and Medicare and that it is the dastardly Democrats who cannot be trusted, instead jeered and heckled Biden like middle schoolers, calling him a LIAR for saying that any Republicans would suggest sunsetting the two big middle-class social insurance programs.  They could not bear even for a moment the idea that Biden could say something about them that, while true, was politically uncomfortable.

Few people have ever thought of Biden as being an agile in-the-moment debater, but he certainly timed his coming-out party well.  Again, it seems unlikely (though hardly impossible) that he could have planned for this, but he deftly seized the moment and said, in essence: You've got a deal!  No cuts to Social Security or Medicare.  We good?

This happens to be great news for someone with my political leanings, of course, because my oft-disappointed feelings about the Democratic Party are nothing compared to my paralyzing fear of what Republicans will soon do to end our constitutional democracy.  Even setting politics aside, however, this is great news substantively, because I happen to have spent a great deal of my professional life debunking baseless conservative attacks on Medicare and especially Social Security.  And here I do mean "conservative" to include more than Republicans, as I will explain below.

It has been barely a week since Biden's big moment, and the backlash from the budget hawks (or, as Paul Krugman calls them, the Very Serious People, or VSPs) has already begun.  Democrats and Republicans, in an unplanned way, have agreed to leave in place two of the most successful pieces of social legislation in human history (perhaps not as transformative as child labor laws or the 5-day work week, but that is pretty good company).  The VSPs' response: This cannot stand!

In the face of Biden's success, what is a good anti-government fiscal scold to do?  Present their political preferences as facts, and count on elite institutions like The New York Times to lead the way.  What could be more bipartisan than to have the supposedly liberal Times front for an attack on the middle class?  How about passing it off as neutral reporting rather than opinion?  They can do that, too.

Tuesday, February 14, 2023

What if Extraterrestrials Sent the UFOs?

 by Michael C. Dorf

First of all, I refuse to use the term "UAP," given the rich and weird history of "UFO." I get that "unidentified aerial phenomena" is technically more accurate than "unidentified flying objects" because some of the observations might not be of "objects," while some of the objects lack the capacity to "fly" in the sense of direct their own course. Even so, it's not as though the term UFO offended extraterrestrials or anyone else. It seems to me that the Kansas City pro football team and the Atlanta major league baseball team should change their names (and their fans should abandon the "tomahawk chop") long before we give up "UFO."

Meanwhile, yes, I know. By far the most likely explanation for the discovery of the three UFOs that the U.S. and Canada have shot down since shooting down the Chinese spy satellite is simply that the more finely tuned parameters for detecting and acting on high-altitude objects have revealed more stuff floating in North American airspace than we previously cared about. However, while that fact means that it's highly unlikely that there are suddenly more UFOs above the North American skies than in the past, it doesn't rule out the possibility that some of them are of extraterrestrial origin. Maybe the hyper-intelligent octopus-people of Kepler-62f have been silently watching us for years and we're only now noticing their probes.

Undercutting the ET explanation is the statement by the National Security Council that the three objects shot down since the downing of the Chinese balloon were (as reported by NPR) "uncrewed and . . . have limited abilities, from a lack of communication signals to a lack of obvious propulsion capability." But of course, the spacefaring octopus-people could have all sorts of technology we barely comprehend--means of hiding their crew, communications, and propulsion methods. Thus, when White House press secretary Karine Jean-Pierre said "[t]here is no – again, no — indication of aliens or extraterrestrial activity with these recent takedowns," it's possible that our technology is unable to detect the cloaked signs of extraterrestrial activity.

Am I serious? No, of course not. But my Verdict column tomorrow will discuss the Chinese spy balloon, so I thought it would be fun to write about ETs in today's essay for the blog. The column discusses the scientific and legal distinctions between spy balloons and spy satellites. In the balance of this essay, I'll say a few words about how we might think about contact with alien civilizations.

Monday, February 13, 2023

The Perils of American Exceptionalism--at Home and Abroad

 by Michael C. Dorf

On Friday of last week, I critiqued President Biden's statement during the State of the Union asserting that the U.S. is unlike other countries in the world, which are based on geography and/or ethnicity because the U.S. is based on the idea that every member of the polity "is created equal in the image of God." I explained that each of the four propositions implicit in that statement is wrong. To recap, those four propositions are: "(1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea."

Why did I go into so much depth? Because Biden's false claims--which echo views that we might call patriotic hyperbole passed off as conventional wisdom--are widely held and conducive to great mischief in both constitutional law/politics and foreign policy. I elaborate each of those forms of mischief below but first I'll follow up with a brief clarification and further development of a couple of points I made on Friday.

Friday, February 10, 2023

Is the U.S., as Biden said in his SOTU, "the only nation in the world built on an idea?"

by Michael C. Dorf

Very near the end of his State of the Union address on Tuesday night, President Biden said that the United States is 

the only nation in the world built on an idea. The only one. Other nations are defined by geography [and] ethnicity, but we're the only nation based on an idea. That all of us, every one of us, is created equal in the image of God. 

There are four claims there: (1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea.

The good news is that no one in the chamber booed or heckled when Biden delivered the foregoing patriotic and inspirational lines. The bad news is that none of those four propositions is true. I offer the analysis below not so much as a criticism of Biden in particular--who, in making the foregoing statement expressed something like the conventional wisdom offered by American politicians--but as a critique of a common brand of American exceptionalism.

Thursday, February 09, 2023

With Manchin in the Lead on the Debt Ceiling, What Could Possibly Go Wrong?

by Neil H. Buchanan

Now that the first wave of uninformed press coverage about the debt ceiling has run its course, superseded by things like the Turkey/Syria earthquake and Republicans heckling the State of the Union speech, the real work will begin.  That is, even though we reached the nominal debt limit a few weeks ago, we have some unknown number of months (most likely until June or July) before the drop-dead date on which Republicans might shoot the hostage and push the US into a constitutional crisis.  Four or five months is not a long time, and it will involve ebbs and flows of news as real discussions take place that will determine our collective fate.

Professor Dorf pointed out a few days ago that the Biden Administration seems to be trying to "win the politics" of the debt ceiling by priming the public to blame Republicans if everything goes to hell.  I completely agree with his forceful retort:

If Biden thinks that he has painted McCarthy into a corner where McCarthy will have to concede lest the unpopularity of the GOP position be exposed, he hasn't been paying attention.

For God's sake, AFTER A MOB INSPIRED BY A DEFEATED REPUBLICAN PRESIDENT TRIED TO VIOLENTLY OVERTHROW THE U.S. GOVERNMENT, A MAJORITY OF HOUSE REPUBLICANS VOTED TO END DEMOCRACY IN AMERICA. What price did they pay? They won back the House by a smaller margin than expected, but meanwhile, the few patriotic House Republicans willing to stand up to the madness lost their seats. And Joe Biden thinks Republicans will be embarrassed by the fact that they haven't specified what budget items they want to cut? Or that they won't simply lie about it?

As Professor Dorf went on to point out, Biden might be trying to negotiate with hostage-takers while denying that he is doing so.  In any case, it is surprisingly not Biden's inherently cautious centrism that underpins his thinking on this.  As I noted here recently, even the genuine left-liberal thinker Bob Kuttner has enthusiastically embraced the idea that Biden should affirmatively harm vulnerable people (like Social Security recipients), because that would allow Biden to point the finger at Republicans.

That means that even some of the people who should be aggressively telling Biden that he needs to pay all the government's bills when the time comes, even if that means issuing debt that Congress has not authorized, are instead mired in wishful thinking about harnessing harm to real people to their side's political advantage.

But an even larger part of the problem is that Biden's supposedly cautious strategy (which is in fact quite risky) requires following the conventional rules of politics.  If he is going to win the politics, he is going to have to play politics.  And who else is on this playing field?  None other than the barely-Democratic senator from West Virginia, Joe Manchin.  When I first saw reports indicating that he will play a major role in negotiations (although, again, Biden claims that he is not willing to negotiate), my heart sank.  On the other hand, Manchin would have been a stumbling block no matter what, so I guess it does not matter that he is in the mix now.

Or does it?  Two days ago, The Washington Post ran an op-ed under Manchin's byline.  The piece was not so much terrible as comically confused, showing a lack of understanding that will make his presence in these we-swear-they're-not-negotiations talks especially problematic.  Although he stumbled his way toward something that almost sounded like a reasonable position for a fiscal hawk (and while I am definitely not a fan of budgetary orthodoxy, at this point any argument from conservatives that is not utterly daft is a welcome change of pace), his presence will almost certainly make matters worse.

Wednesday, February 08, 2023

Schadenfreude and Third-Party Standing in the Student Debt Forgiveness Case

by Michael C. Dorf

Later this month, the Supreme Court will hear oral argument in two cases challenging the Biden administration's student debt forgiveness program: Dep't of Educ. v. Brown and Biden v. Nebraska. Each case presents a threshold question whether the respective respondents have standing as well as a merits question. Although the merits questions are worded a bit differently in each case, they boil down to the same basic objections: (1) that the HEROES Act, which the administration invoked as authority for the debt forgiveness plan, does not in fact authorize it because, say the respondents, most of the beneficiaries of the plan were "not placed in a worse position financially in relation to that financial assistance because of their status" as individuals affected by the national emergency of the COVID-19 pandemic; and (2) the adoption of the plan was procedurally flawed.

As I wrote in my Verdict column last week, the recent announcement of the Biden administration's intention to end the COVID-based national and public health emergencies puts the Solicitor General in a somewhat awkward position rhetorically but as a logical matter should not affect the merits. The national emergency first declared by the Trump administration and used initially by that administration as the basis for temporary cessation of student loan interest payment obligations was a valid exercise of the authority granted by the HEROES Act, and the effects of an emergency can linger after the emergency ends. The sticking point, as noted above, is just what those after-effects are--a question to which the end of the emergency is not really relevant. Even so, as I noted in the column, I would not be surprised if lawyers for the respondents invoke the impending end of the emergency to score points, nor would I be surprised if one or more Justices make the same contention.

Readers interested in the merits might wish to view my recent "debate" with Professor Ilya Somin about the case. (I put the word "debate" in quotation marks because it was more of a friendly discussion in which I agreed with some of what Prof Somin said and disagreed with other points.) Prof Somin's opening remarks focused mostly on the cases' merits, discussing standing only at the end, whereas my opening remarks were directed mostly to standing; in our second round and during the Q&A, we each addressed both standing and the merits. (Due to a technical glitch, the video cuts off the Introduction and starts about a minute into Prof Somin's remarks but is otherwise easy to follow.) In the balance of today's essay, I'll recap and further elaborate on a couple of points I made about standing.

Tuesday, February 07, 2023

The UK's Self-Immolation Proves (Among Other Things) That Business Needs Regulations

by Neil H. Buchanan

Apparently, "Everyone Regrets Brexit," according not only to one UK-based news outlet but to poll after poll showing that the people of the UK now rue their country's 52-48 plebiscite vote to leave the EU.  Astonishingly, according to a recent mega-poll of ten thousand respondents, the "we should have stayeds" outpace the "glad we lefts" by almost a two-to-one margin.  That is hardly surprising, because the idea of getting out of Europe was sold on lies in the first place, and the county's long, grinding decline has only accelerated in the last six years.

Does that mean that the UK will soon be back in the EU?  That would make too much sense.  Before we even get to the question of rejoining, recall that that 2016 vote was non-binding, and it was only when the Conservative Party decided to go all-in on carrying through with Brexit -- and "hard Brexit" at that -- that the divorce was hammered out.  In addition, the supposed mandate from the voters in 2019 that put the serial liar Boris Johnson (whose career of brazen, very public lying stretches back at least to 1988) in charge of "getting Brexit done" in fact saw more than half of the voters that year choosing parties that opposed Brexit.  Again, this is a train wreck that the Tory party embraced and delivered, ignoring every warning along the way.

So surely the Labour government-in-waiting will seize on popular discontent.  Right?

Monday, February 06, 2023

A Debt Ceiling Deal That's Not Called a Debt Ceiling Deal is Still a Debt Ceiling Deal

by Michael C. Dorf

Following his meeting last week with President Biden, House Speaker McCarthy stated that he and the President should be able "to find common ground" regarding raising the federal debt ceiling. Yet the two sides seem to be starting at an impasse. McCarthy says he wants budget cuts in exchange for raising the debt ceiling; Biden says that raising the debt ceiling is non-negotiable.

Biden clearly has the moral high ground here. This is not like a budget negotiation in which, say, Democrats want billions for some domestic program while Republicans want billions for some military program, so they come together to fund both. Biden's ask is not on behalf of any Democratic agenda item. Raising the debt ceiling is necessary to avoid tanking the global economy and perhaps permanently undercutting the role of the dollar as the world's reserve currency.

And yet, even though McCarthy's position is unreasonable, to paraphrase Donald Rumsfeld, you don't negotiate with the House Speaker you wish you had but the one you have. Just as hostage negotiators sometimes find themselves negotiating with hostage takers and U.S. diplomats sometimes negotiate with unsavory regimes, so too here, the administration must deal with McCarthy and his caucus of ideologues and imbeciles. What are the options? Let's consider.

Friday, February 03, 2023

How Might We Make Britain (and America) Great Again?

by Neil H. Buchanan

The UK's many problems have become too obvious for even the most obtuse anglophiles to ignore or deny.  That country's post-Brexit meltdown, which has (among many other things) renewed the possibility of Scotland declaring independence -- Sexit, it seems -- continues to get even worse, with the empire on which the sun once never set now seeing an acceleration of its long, agonizing decline.

In yesterday's column here on Dorf on Law, I asked whether the US or the UK will be the first to fully implode, economically and politically.  I acknowledged that the Brits have a significant head start on the Americans in terms of frittering away their many advantages, having begun their decline in 1945 (at the very latest) and showing no signs of rejuvenation at any time since then.  On the other hand, the US's particular pathologies -- most obviously the chaos that Republicans are unleashing via debt-ceiling-based threats of Armageddon, although in fact it all comes down to our constitutional infirmities, such as a Supreme Court that laughs off gerrymandering -- might allow us to speed past our former colonial overlords on the highway to hell.

Moving from predictions of doom to the possibility of changing our fates, what might be done to stop all of this?  A brief conversation with a British colleague earlier today sparked some thoughts.  A possible alternative headline to this column captures the basic idea: "National Renewal and Soaking the Rich: What Must Be Done to Reinvest in Our Future?"

Thursday, February 02, 2023

Can the US Best the UK in the Art of Self-Destruction?

by Neil H. Buchanan

Russia, emerging from the ashes of the Soviet empire, was until less than a year ago thought to be a world power in its own right, with the invasion of Ukraine to be the first in a series of assuredly unstoppable steps to returning itself to the status of something like an imperial power.  On the other hand, China's post-Maoist history is a mixture of impressive advances and setbacks.  Turning more than 300 million rural peasants into middle-class city dwellers is, after all, almost incomprehensible in its scope.  But perhaps its most consequential setback, as we recently learned, was not caused by a singularly bad decision (like Vladimir Putin starting a land war in Europe).  There is now, instead, the sudden recognition that the country has badly mishandled its population policies for the last half century, with the result that there is now an "age bomb" threatening the country's still-unknowable future.

The colonial empires of the various European powers had all petered out by roughly 1960, with only the most ridiculous remnants remaining.  For example, I have been spending the last month in the Netherlands, which is formally the Kingdom of the Netherlands, consisting of Aruba, Curaçao, the Netherlands and Sint Maarten.  There is a royal family, but the king has actually piloted commercial jets incognito.  (I am not kidding.)  New Amsterdam (the city, not the now-canceled TV series or the Manhattan brewpub) was a long, long time ago.  Last semester, I was in Austria, which does not even hold onto any remains of the Austrian or Austrian-Hungarian Empires.  (It does have awesomely beautiful architectural grandeur that the country is maintaining very well, however.)  France?  Spain?  Portugal?  Sweden?  Denmark?  Germany/Prussia?  Italy?  Please.

I mention these recent and not-so-recent powers not because they are my focus today, but because I want to think about the two countries that have undeniably been global superpowers within the lifetimes of at least the oldest people alive today, and for much longer than that.  The UK (technically the United Kingdom of Great Britain and Northern Ireland) and the US (the United States of America -- USA, USA, USA!!) are the two most recent global hegemons.  In both countries, things are not going well, and the trends all point in the wrong direction.

Why are both once-great powers now in such a bad way?  And which one will flame out more ignominiously or spectacularly?  In this competition that neither country should want to win, both the UK and the US show plenty of signs of losing by winning.

Wednesday, February 01, 2023

Text, History, and Tradition in the 2021-2022 Term: A Response to Professors Barnett and Solum

 By Eric Segall

The 2021-2022 Supreme Court term was one of the most important in American history. In Dobbs v. Jackson Women's Health, the justices returned the issue of abortion completely to the states (and potentially Congress). In New Yok State Pistol & Rifle Ass's., v. Bruen, the Court substantially limited the ability of states to pass meaningful gun control laws. And in Carson v. Makin and Kennedy v. Bremerton School Dist., the justices further weaponized the free exercise clause as a restriction on the states while further limiting the reach of the establishment clause. 

Constitutional law scholars across the ideological spectrum have been trying over the last seven months to make sense of these decisions and how they relate to originalism and the use of text, history, and tradition in constitutional law. One such effort is a recent article by two of the country's most prominent academic originalists--Professors Randy Barnett and Lawrence Solum. Their article, "Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition," is a complex and provocative assessment of three of the cases discussed above (they leave out Carson), as well as the authors' suggestions for how best to incorporate history and tradition into originalist judicial decision-making. There is little doubt this article will be widely-read and will constitute a major contribution to our academic debates over originalism. The authors posted the paper on SSRN just a few days ago and it already has over 1000 downloads.