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.